Purpose of Colorado Fence Laws
Fence laws are not always top of mind for homeowners, but they can become a critical concern when one wants to build a fence. This can happen in weeks or even days during real estate transactions, so it’s important to have a fundamental understanding of how Colorado fence laws affect residential properties.
A fence can define property lines and help to keep out unwelcome visitors, including wild animals and people. Typically, residential fences are 3 to 6 feet high and are made from wood, PVC vinyl, chain link, or ornamental aluminum. Some are primarily decorative, while others have a high degree of privacy.
Even though fences serve a practical purpose, they can also create barriers that can cut off a view of a garden or mountains, block sunlight, and result in property disputes with a neighbor. Knowing your rights and responsibilities as a homeowner can help you to avoid conflicts.
The first thing to understand about Colorado fence laws is that the state does not have a general fence law. Each municipality handles fence issues as part of a broader municipal ordinance that governs all property types. Rural fences and those in unincorporated areas are generally regulated by Colorado Revised Statutes (CRS) § 35-44-101 through 107.
The primary reason for constructing a fence is to establish a property line between two neighbors. Unfortunately , even if one homeowner knows the boundary based on a survey, a neighboring homeowner may not. The riparian zone along a river, creek, or creek is also an area where neighbors may have land disputes.
Establishing a boundary line fence law is complicated by the "prescriptive easement," an easement created by years of continuous use of a property by an adjoining landowner. The reasoning behind this law is that it would be unreasonable to require a landowner to move or build a new fence after unknowingly using an adjacent owner’s property. Such actions could result in huge financial losses due to relocating structures.
While the riparian zone is considered part of a property, "wet" areas are created as a result of water drainage or run-off. The area beyond a fence line is defined by drainage, which creates a strip between private property and an easement for public use.
There is no one-size-fits-all fence law in Colorado, so it’s important to be familiar with them to avoid fines and other legal implications.
Boundary and Fence Location
When it comes to property boundaries, there’s a common misconception in Colorado. Many people seem to believe that you can just put your fence wherever you want. In fact, property boundaries are clearly defined, and errors can get expensive. What is more common is for people to have a fence on or over the property line.
The most important surveys for fence purposes are of the kind that tell you exactly where the line is, so that you know where to build the fence. That survey must be made by a licensed land surveyor. Surveys for purposes of obtaining a building permit, or a mortgage are not definitive for the property line, according to a Colorado case called Woodbridge v. Barrow. Another significant issue with fences in Colorado are easements that affect the right to put a fence. For example, a utility easement may grant the power company the right to maintain their overhead lines, which could restrict your rights to put a fence. If the fence were on the property line, things could get complicated. These easements differ by county, and are typically recorded with your deed. It is important to consult with an attorney and review these easements before deciding where to place your fence.
When it comes to property line disputes, the situation gets complicated. If your neighbor has put up a fence, and you don’t want it there (or vice versa) this could cause problems. Even if you have a survey clearly showing the line, courts in Colorado have ruled that the actual use of that property by the adverse party can determine who retains title to the land. In one Colorado case, a landowner began using 17 feet of his neighbor’s property without telling her. At first, the neighbor’s use was itself limited to about 10 feet, but then he built a fence and began maintaining that area as if it were his own land. The neighbor didn’t do anything for 30 years. In that time, the neighbor who began using the property began growing flowers, trimming trees, and even planting grass. He also had a fountain and offered to sell the land to his neighbor for $9,500. However, the adverse neighbor never paid taxes on the property. When the adverse neighbor died, the surviving spouse wanted to sell the property. The first neighbor wrote and told him about the issues with the property, which were that the adverse neighbor did not have title. As a result, when the adverse neighbor went to court, the judge ruled that the adverse neighbor did not have title even though he occupied the land and spent money on it, because he did not pay property taxes. Therefore, the neighbor never had legal title to give to his spouse, and she lost the property.
This highlights two important issues when it comes to property lines and fences in Colorado. First, it is clear that certain limited forms of use of the property, set off by title, is not sufficient to actually create title to the land. Second, because the question of title is always determinable from the public record, it is imperative to do a title search to see whether any easements (as discussed above) run the risk of altering the use of the property.
Fence Height and Material Guidelines
In addition to the setback requirements, state and municipal laws may limit fence height based on the property type. For example, when it comes to single-family residences, Colorado state law usually allows fences not higher than 6 feet for backyards and side yards and 4 feet for front yards. However, many municipalities in Colorado impose their own rules and regulations that may differ from the state requirements. In the city of Boulder, for instance, a fence in a residential area may not encroach on easements or be closer than 2 feet to the right-of-way or property line. If located in the front yard, fences may not be over 30 inches tall and must have at least an 80% open area. In a non-residential district, fences may not be taller than 12 feet. Commercial properties are subject to different height and material restrictions. In Westminster, for example, a fence in a commercial, industrial, or agricultural district can be up to 8 feet high, but in those special districts, only fences for security purposes may be made of barbed wire. In Thornton, on the other hand, while the height limitations for fences in residential properties is 6 feet, the limitations for fences in nonresidential properties is 60 feet. In Parker, fences in nonresidential properties must be solid fences 4 to 7 feet high and 5% transparent to limited degree, but in the open portion, at least 75% transparent to unlimited degree.
Neighbor Relations and Adjoining Fences
If a fence is located between two adjoining properties, Colorado law imposes upon each neighbor both the duty to assume sanctity of the neighboring fence and the responsibility to share the costs of its installation. The exception to the sanctity of the fence rule is if comparative negligence or fault can be shown by the fence owner. Conversely, in order for the fault-free neighbor to be relieved of its obligation to share the cost of the fence, it must show that either the fence was not necessary or that a particular fence was not required in which case the fence owner is required only to pay as much for such fence as a fence of a lesser value would have cost.
As to the duty to maintain a boundary fence, the owner of that fence may demand from his neighbor that the neighbor share the expense of, not only necessary repairs, but also of necessary reconstruction of the fence. Such an action must be filed in the district court in and for the county in which the fences are located. If the fence is made of materials commonly used for a fence of like kind, the fence owner is not entitled to force the neighbor’s participation in the costs of installation or reconstruction, or to its cost of repair or maintenance.
If a boundary fence is shared among two properties and one of the owners wishes to downsize the existing fence by a foot or two, that owner may remove the fence entirely and replace it with a fence that meets its current requirements, but he must return half of the value of the fence to the neighboring property owner. A similar result obtains should the other property owner desire that the existing fence be moved to a more advantageous location, again returning half the value to the other property owner.
Though the legislative purpose behind these specific statutory provisions does not appear to be reported in legislative history, the expressed purpose seems to be considered congruent with private concerns. In the absence of such a legislative determination, many courts consider the "equal benefit to the lot owners" to be the underlying theory behind these statutes. The "equal benefit" approach requires that in determining the cost of the fence, considered is the equivalent benefits to the landowners. Thus, this parity between the respective needs of the landowners may be said to be the motivating factor in requiring that the costs be shared.
New construction or removal of older fences should be discussed with your neighbor to prevent any issues with adjacent property owners regarding the cost of the new fence or the absence of the old.
Permit and Approval Requirements
Most fences are not built without a permit. A permit application for a fence typically requires a drawing drawn to scale that includes the following information: The application should include the type of fence, materials and board size, if applicable. All applications for fences should be reviewed by the local authority having jurisdiction (typically the city or county) to confirm that the proposed fence complies with local requirements. A zoning approval application is often a requirement. Some cities also require a fence permit. Since fences can block sight lines for motor vehicles and may be located in the right of way, a vision triangle approval is often required from the local public works department. For example, a recent City of Boulder ordinance regulating development in the North Boulder Subcommunity requires sight-line approval and building permit review for fences. For example, Boulder requires all fences (and walls) to be no more than 60 inches tall, except along a designated private property access drive , where the maximum height is 72 inches. Fences must also provide at least 20 feet of separation from the right-of-way or any driveway to the right-of-way. The City of Denver allows fences over 42 inches tall in the backyard only. In Colorado Springs, a single-family residence may build a fence up to 72" tall in the rear and 42" tall in the front. Denver County does not have any fence ordinances. Many counties require no fence permit for fences under 3 feet tall, although permits are still generally required to change a fence height. Another frequently required element in a fence permit application is a statement that the applicant will install and maintain a 3-foot high continuous landscape buffer or fence adjacent to any existing fence within the right of way that is greater than 3 feet in height. This is required if your proposed fence will encroach upon an easement or right of way. In addition, many Colorado municipal and county regulations also require a letter from the adjacent property owner(s) regarding the proposed fence height. The letter is to protect local approvals from applicant-induced conflicts with the neighbor(s).
Outdoor Livestock Fences
When a fence that is meant to enclose livestock, Colorado has specific laws concerning its construction. First, in addition to the requirements above, agricultural or livestock fences are to be built of either barbed wire or woven wire of five lines or strands, with the second line of barbed wire or strand of woven wire to be not less than four feet from the ground and the top line of barbed wire or strand of woven wire to be not more than five and one-half feet from the ground. C.R.S. § 35-46-203. Second, if it is not feasible for the fence to be constructed next to the road, and therefore a point of access would need to be a given way, the fence is allowed to be taken down provided that the fence is constructed next to the roadway in a manner that requires no change from the original construction, height of the wires, or cost designation of the same or an equivalent line of fence within a distance of one mile from where the fence was taken down. C.R.S. § 35-46-205. Third, unless expressly agreed otherwise, the owner of the lands at the time the fence was removed is responsible for any reasonable costs to the landowner or other interested party resulting from the removal. C.R.S. § 35-46-207.
Criminal Penalties for Fencing Issues
Should one or more parties fail to respect their neighbor’s property rights, a homeowner could file the complaint with the local authority focusing on administering fence laws. There are four possible outcomes of an administrative hearing:
- Fence must be moved in order to protect the homeowner’s property rights.
- Fence must be restored to its original size if it was altered.
- Fence must be removed entirely, and possibly replaced or remedied with a new fence.
- Fence is permitted to remain in place.
Another possible outcome of a fence dispute that might lead to litigation is homeowners may agree to admission of damages and a final sensitivity agreement. Such agreements allow owners to settle at a cost cheaper than individual litigation and avoid cumbersome litigation.
If the fence is afflicted by disputes as to ownership and adjoining property, Colorado Revised Statute 38-9-104 allows home owners to seek civil damages, which can include reasonable attorney’s fees and costs incurred to have it repaired, removed or remedied. Challenges can be made by any person or entity alleging a legal interest in the fence.
Wrapping Up Colorado’s Fencing Laws
Navigating the complexities of fence law in Colorado can be quite the challenge for even the most well-informed property owner. From understanding what constitutes a boundary structure or fence to knowing when you might need to remove or alter one, there are many gray areas that can complicate issues for homeowners and would-be fence builders.
In this post, we’ve shared a clear and concise guide to some key questions about Colorado fence laws, ranging from boundary disputes to non-material fence alterations and requirements for white fences. We’ve also provided some straightforward answers to fences and shared some advice when disputes arise. Now , we’ll leave you with our top 5 tips for navigating fence issues as a property owner:
These tips may not answer every question or provide every possible solution for your fence-related issues, but they’re a good starting point as you work through the complexities of Colorado fence law. Other important things to keep in mind include understanding your own rights and responsibilities clearly by becoming familiar with Colorado statutes and covenants in your neighborhood. You should also work to maintain amicable relationships with your neighbors. Most importantly, when in doubt, contact a qualified attorney who specializes in fence-related law. Doing so can save you money, time and nerve as you navigate fence issues on your property.