COLUMBUS — Changes last year to the Ohio Line Fence Law included a deadline of Sept. 30 for landowners to file an Affidavit of Pre-existing Line Fence, according to Peggy Kirk Hall, director of Agricultural Law, OSU Agricultural and Resource Law Program.
The affidavit procedure allows a landowner to certify under oath that a line fence existed on a property’s boundary line within the two years prior to the filing of the affidavit.
A landowner would want to file the Affidavit of Preexisting Line Fence to ensure that the law’s rule of “equitable shares” would apply if the owner wants to construct a replacement fence on the location, said Kirk Hall.
The equitable shares rule states that landowners adjoining the boundary line must share “equitably” in the cost of constructing and maintaining the fence.
An equitable apportionment is made based upon a consideration of factors that attempt to allocate responsibility fairly, including presence of waterways, trees and vegetation; importance of marking the boundary line; risk of trespassers and use of the fence for containing livestock.
Under this rule, each landowner may be partly responsible for the line fence, said Kirk Hall.
If a landowner cannot establish the presence of a preexisting line fence, then the landowner who wants to build a new fence on the line would be completely responsible for all costs incurred in doing so.
In addition to the Affidavit of Pre-existing Line Fence, an owner can prove a pre-existing fence through evidence, such as remnants of the fence, a written agreement or assignment about the fence, photographs or testimony.
The Affidavit of Pre-existing Fence must be written and filed in accordance with Ohio law.
OSU’s Agricultural and Resource Law Program has fact sheets to explain the Line Fence Law and the affidavit requirements at http://aede.osu.edu/programs/aglaw.
The Ohio Farm Bureau has model affidavit documents; contact your local office.
It’s also important to consult an attorney and ensure that the affidavit is in accordance with the law, said Kirk Hall.
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