Every town and community in Massachusetts has their own set of ordinances and bylaws that dictate what residences and businesses can and cannot do with fences and boundaries. As we discussed previously, we are going to take a closer look at each of the cities we service and review all of the State, County and local laws that fence owners need to be aware of and comply with.
The Importance of Fence Law
As a reminder, it is the responsibility of every fence owner, or potential owner, to take the time to understand what fence laws are applicable to their situation. If you’re building a fence, or have a fence that is in need of repair, there are state and local laws that apply to your situation. While we will be documenting all of the published ordinances for your area, we still recommend that once you review them, you seek further clarification and confirmation if you find one or more laws are going to impact your property. Furthermore, if you’re a member of an HOA or housing community, check with your organization for any bylaws which may further affect your fencing.
Massachusetts State Fence Law
In the State of Massachusetts, the State Constitution enumerates a series of fence laws and procedures in Chapter 49. Within the chapter are 21 sections regarding fencing. While we’re not going to reprint every section here, we’ll list and link to each section so you can refer to any that are relevant to your fencing situation.
Section 1 – Fence viewers; appointment; tenure
Section 2 – Definition of fences
Section 3 – Maintenance of partition fences
Section 4 – Failure to maintain partition fence; proceedings by adjoining occupant
Section 5 – Remedy for repair of deficient fence
Section 6 – Disputes regarding repairs; arbitration
Section 7 – Remedy for repair of deficient fence assigned by fence viewers
Section 8 – Remedy for repairing more than just share of partition fence
Section 9 – Construction and maintenance of fences between lands divided by a river
Section 10 – Fences on lands owned in severalty and occupied in common; construction
Section 11 – Maintenance of fences surrounding land laying common
Section 12 – Purchase of rights in fence
Section 13 – Enclosing of formerly unenclosed land; liability of owner; exception
Section 14 – Boundary disputes
Section 15 – Rebuilding of fence on true boundary; duties of adjoining owners
Section 16 – Fence viewers; jurisdiction where fence is on town boundary
Section 17 – Water fences
Section 18 – Fence viewers; powers
Section 19 – Penalty for misfeasance
Section 20 – Fees
Section 21 – Fences deemed a private nuisance; right of action
Make sure you take a moment to review each section that applies to your property or issue.
Massachusetts State Constitution, Chapter 49: Fences, Fence Viewers, Pounds and Field Drivers: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleVII/Chapter49
Additionally, if your property, whether it’s a building or fence, serves as a boundary for a public way (such as a street or highway), there are additional fence laws which may apply to under Chapter 86, Boundaries of Highways and Other Public Places, and Encroachments Thereon.
Section 1 – Erection of monuments
Section 2 – Buildings or fences as boundaries
Section 3 – Encroachment on public ways
Section 4 – Removal of encroachments
Section 5 – Removal of gates, rails, bars or fences upon or across ways
Section 6 – Barbed wire fences
Section 7 – Removal of unused poles, structures, etc. from public ways
Massachusetts State Constitution, Chapter 86: Boundaries of Highways and Other Public Places, and Encroachments Thereon: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXIV/Chapter86
Key Points:
The Definition of a Fence
In the state of Massachusetts, a fence is a barrier at least “four feet high, in good repair, constructed of rails, timber, boards, iron or stone.” This covers most fences, but Massachusetts has also designated less ordinary constructs to be fences: “brooks, rivers, ponds, creeks, ditches and hedges, or other things which the fence viewers consider equivalent thereto” are also considered to be legal fences. It is important to note that these barriers must be in good repair to be considered legal fences, and that a fence with substantial wear or breakage is not legal and can be considered a public nuisance.
Six Feet Restriction
While height restrictions are different in some districts, Massachusetts state regulation mandates that residential fences can be no higher than six feet in back yards and four feet in front yards. While this most directly applies to constructed fences, it also applies to natural fences such as trees, bushes or shrubbery in some districts. When planting a natural barrier, be sure to consult the local ordinances concerning height restrictions.
Massachusetts law allows for one-time exceptions, called variances, to the six foot rule in select cases. To receive an exception, fill out a request at the local City Hall including a detailed description of the circumstances of your need for an exception.
Shared Fences
Shared fences (fences constructed between two owners’ properties) are considered to be the responsibility of both owners. This means “both owners are responsible for keeping the fence in good repair, and neither may remove it without the other’s permission.”
Essex County Fence Law
There are no applicable ordinances for Essex County that apply to fences in Marblehead, MA.
Marblehead MA Fence Law
Marblehead, MA has a set of bylaws which includes some references to fences.
Section 200-7:
A Fence is defined as a fence or wall, not a retaining wall, which runs along the boundary line of a lot or within five feet of said boundary line.
Section 200-29:
All freestanding exterior mechanical equipment (such as but not limited to propane and oil tanks, compressors, air-conditioning units) shall be visually screened by a method such as low fencing or evergreen vegetation.
Section 200-16:
Maximum fence height. In all zone districts the maximum height of any fence shall be six feet. Fences shall be measured upward from the lowest point at which the fence post, fence, or wall (not a retaining wall) meets the ground to the top of the fence, fence post, or wall whichever is higher. Fence posts may be a maximum of six feet six inches. Only the posts may exceed six feet.
Section 200-15:
B. Interpretation of dimensional regulations.
(1) No dwelling or other principal building shall be constructed on a lot having less than the prescribed minimum area and no dwelling for use by more than one family shall be constructed or converted unless the lot contains at least the minimum area plus the prescribed additional area per family for each family in excess of one.
(2) No dwelling or other principal building shall be constructed on a lot having less frontage on a street than the prescribed minimum lot frontage.
(3) The minimum front yard setback shall be determined by a line parallel to the front lot line extending from one side lot line to the other. In the case of corner lots, the front setback line shall be observed for all bordering streets. Exterior steps and landings not exceeding the minimum required egress width and depth and not exceeding four feet in height as set forth in the State Building Code may protrude into the minimum front setback area. No part of any building shall be placed within or protrude into any of the setback areas except for the following: steps only in the front yard setback as described in this subsection and in all setback areas; cornices not exceeding 18 inches in width, eaves, chimneys, windowsills, signs, fences. Any projection other than the foregoing exceptions requires a special permit for use and dimension from the Board of Appeals. (See illustrative sketch.)
Historic District Acts
Section 5.
(a) It shall be the function and the duty of the commission to pass upon the appropriateness of the exterior architectural features of buildings, and structures hereafter to be erected, reconstructed, altered or restored in said districts wherever such exterior features are subject to public view from a public street or way. All plans, elevations and other information deemed necessary by the commission to determine the appropriateness of the exterior features to be passed upon shall be made available to the commission by the applicant. It shall also be the duty of the commission to pass upon the removal of any building within said districts as set forth in section six, and the erection or display of occupational or other signs as set forth under section seven.
(b) The town, in establishing said By-Law, may, in addition to the purposes set forth in section two, consider among other things the historical and architectural value and significance, architectural style, the general design, arrangement, texture and material of the buildings or structures to be regulated within a district and the relation of such factors to similar features of buildings and structures in the immediate surroundings within said district.
(c) The commission shall not consider detailed designs, relative size of buildings in plan, interior arrangement or building features not subject to public view. Said By-Law may provide that the commission shall not consider ordinary maintenance and repair to buildings and structures, building permits issued prior to the notice of public hearing given by the planning board as provided in section three, fences, stone or brick walls, arbors, trellises, terraces, patios, flagpoles, chimneys, screens, storm doors, windows, color, sheds and temporary buildings as may be defined by said By-Law, and other exclusions as the Town may determine.
(d) In the event that vacant land exists or should occur through catastrophe, and that such land is an integral part of a district, the commission shall have the right to pass upon all plans for construction, and such plans shall be submitted to the commission for its approval before a building permit may be issued.
(e) In case of disapproval the commission shall state its reasons therefor in writing, and it may make recommendations to the applicant with respect to historic significance, appropriateness of design, arrangement, texture, material and the like, as set forth in said By-Law, of the building or structure involved.
(f) Upon approval of the plans the commission shall cause a certificate of appropriateness, dated and signed by the chairman, to be issued to the applicant or affixed to the plans.
Does the construction of a fence require a building permit?
Not presently, however fences cannot exceed six feet in height and may not be placed within twenty feet of a street corner. Fences are also subject to Historic District review. – Marblehead Building Permits FAQ
Fence Viewers selection and contact information: http://marblehead.org/index.aspx?NID=71
Marblehead MA Pool Fences
Section 167-2:
A. Every outdoor family swimming pool having a depth of 18 inches or more shall be completely surrounded by a fence or wall not less than five feet in height, which shall be so constructed as not to have openings, holes or gaps larger than four inches in any dimension except for doors and gates; and if a picket fence is erected or maintained, the horizontal dimension shall not exceed four inches. A dwelling house or accessory building may be used as part of such enclosure.
B. All gates or doors opening through such enclosure shall be equipped with a self-closing and self-latching device for keeping the gate or door securely closed at all times when not in actual use, except that the door of any dwelling which forms a part of the enclosure need not be so equipped.
Section 167-3:
It shall be unlawful for any person in possession of land within the Town, either as owner, purchaser, lessee or tenant, upon which is situated an outdoor family swimming pool having a minimum depth of 18 inches, to fail to provide and maintain such fence or wall as herein provided; and any such outdoor family swimming pool in existence on the date this By-Law becomes effective shall, within 90 days from such effective date, enclose such pool with a fence or wall as herein provided.
Local HOAs
As a reminder, be sure to check with your local housing association, if you have one, to ensure that there are no additional bylaws which may impact your fence or fence installation.
If you own a fence that needs repair, or if you’re considering the construction of a new fence or something that requires a fence, like a pool, make sure that you’ve reviewed the applicable laws and regulations. For a professional assessment of your fencing requirements, please contact the fence pro’s at Malone Fence Company. We can offer fence options and recommendations, as well as assist with your understanding of applicable fence laws and ordinances. Contact us today!
