The commonwealth of Massachusetts’ most significant law regarding fences is the “spite fence” law. This law, found at Massachusetts General Law Chapter 49 Section 21, provides that a fence or other structure like a fence that unnecessarily exceeds 6 feet in height and is maliciously erected or maintained for the purpose of annoying the owners or occupants of the adjoining property will be deemed a private nuisance.
Some municipalities in Massachusetts have additional local ordinances regarding the construction and height of fences.
Massachusetts Fences Defined
The definition of fences is a fence 4 feet high in good repair. A fence may be constructed of rails, timber, boards, iron or stone, brooks, rivers, ponds, creeks, ditches and hedges. It also may be constructed of other things that the fence viewers consider an equivalent to a fence.
A fence viewer is a person appointed by the mayor of a city to review fences. A fence viewer typically serves in this capacity for one year. A fence should not be constructed of of living or dead trees, other than of pieces of dead wood hewn from trees. This is because there are separate regulations regarding trees.
Actions for Private Nuisances
Civil actions to remedy a private nuisance include a judgment for abatement of a nuisance. Typically the word abatement means a lessening of a nuisance. In the case of the construction of a fence, abatement means the removal of the fence.
If the plaintiff, the person who brought the action, prevails in a tort case for a nuisance, the court will order the defendant to pay damages and costs. It will also enter a judgment that the nuisance be abated and removed at the expense of the defendant.
Upon a motion of the defendant, the court may order a stay on a warrant to abate the nuisance. The stay will last six months, giving the defendant the opportunity to remove the fence during that time.
Local Fence Regulations
Cities have a variety of regulations that pertain to fences. A permit for a fence is only necessary if the city requires it. There is no single law that states how close to a property line a property owner may build a fence.
Local regulations may differ according to neighborhood. For example, Boston’s Aberdeen Architectural Conservation District attempts to preserve this “romantic suburb.” The section contains large, ornate houses along winding roads. The city of Boston, which annexed the area in 1873, developed specific regulations regarding fences.
Intent of Fencing Standards
The regulations explain that the intent of the standards is to preserve the original fences and stone walls. Boston also wants to discourage additional fences in the district, which is characterized by open and/or connected yard space.
The regulations provide that when it is necessary to replace original or later contributing fences or stone walls, property owners should replace them with features that match the original in material, form, shape and texture.
If it is not technically or economically feasible to use the same material, the property owner may consider compatible substitute materials. New fences or stone walls should be no higher than 42 inches. Plastic fences are not allowed.
Chain Link Fence Standards
Chain link fences are discouraged. Chain link fences that are used should be black vinyl coated. Lot lines that face a public way must be lined with a hedge. The addition of fences on properties where a fence had not previously existed is discouraged. If the owner wants to build a fence, they should use simple iron or painted steel.
Height Restrictions for Stone Walls and Hedges
They may also use a low stone wall or a low hedge of a height less than 36 inches (3 feet). Although the prior regulation requires that a stone wall be less than 42 inches, the additional statement provides a further requirement, that a low stone wall be less than 36 inches. The guide for the district may contain inconsistencies like this. A homeowner should communicate with the city if they have a concern.
Examples of City Laws on Fences
The city of Lowell requires that a property owner obtain a building permit to build a fence over 6 feet in height. A fence up to 6 feet may be located on or close to a lot line without a building permit requirement. A fence cannot obstruct views on corner lots. A property owner should address questions about fence installation to the city development services office.
The town of Plymouth provides that fences 6 feet and under do not require permits. Fences over 6 feet need zoning and building permits. Even if the zoning department approves a fence, it could be subject to a neighbor’s appeal in court. A property owner must erect a fence on their own property with either side facing the neighbor.
The city of Framingham requires a building permit for all fences over 7 feet in height. A fence over 7 feet must meet the applicable property setbacks. A fence 7 feet or less in height is allowed to be placed on the owner’s property line.
Partition Fences and Repairs
A partition fence is also known as a boundary fence or a division fence. Such a fence is sited on the boundary line between two properties and is used and owned by both owners. The owners of adjoining lands may maintain partition fences in equal shares between their yards unless they agree otherwise. They must improve the fences to the same degree for this to occur.
Neighbor Disputes Regarding Fences
When there is a dispute regarding repair of a partition fence, either party may apply to the fence viewers. After notice to both parties and a hearing, the fence viewers will provide a written decision that assigns different shares of the fence to each party. They may direct the time within which each party should erect or repair their share of the fence.
The assignment is recorded in the office of the city or town clerk. The assignment is binding on the parties and the succeeding occupants of the land.
Complaining to Fence Viewers
When a property owner refuses or neglects to repair or rebuild their portion of the partition fence, the other property owner may complain to the fence viewers. The fence viewers shall give notice to each party and then view the fence. If they determine the repairs are insufficient, they shall state that in writing to the person who has not made the repairs.
If that party does not repair or rebuild the fence, the other property owner may repair or rebuild that part of the fence.
If the repaired or rebuilt portion is deemed to be sufficient by the fence viewers, the property owner who fixed the fence is entitled to double the value of the work. If a property owner ceases to improve their land or opens up their yard, they are not to take away any part of the partition fence belonging to them if the other property owner pays the reasonable value of that structure. This exchange must be determined in writing by the fence viewers.
- City of Lowell: Fence Permits
- City of Plymouth: General Fence Information
- Massachusetts Legislature: Chapter 243, Actions for Private Nuisances
- Boston.gov: General Standards and Criteria
- Boston.gov: Aberdeen Architectural Conservation District
- City of Framingham: Building and Wire
- Massachusetts Legislature: Chapter 49, Fences, Fence Viewers, Pounds and Field Drivers
- Massachusetts Legislature: Chapter 49, Section 21, Fences deemed a private nuisance
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.