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 Swampscott, MA.
Swampscott MA Fence Law
Swampscott, MA has a Town Charter and set of Bylaws which includes some references to fences.
ARTICLE IV.
4.4.3.0. Obstructions to Traffic. On any lot in any district, no wall, fence, or other structure shall be erected or altered, and no hedge, tree, shrub or other growth shall be maintained, which may cause danger to traffic on a street by obscuring the view.
4.5.3.0. Dimensional Regulations. The dimensional regulations in the following table apply in the Planned Development Districts.
Table of PDD Dimensional Regulations
| Phillips Fire | Burrill Senior | Greenwood | Temple | |
| Station PDD | Center PDD | PDD | PDD | |
| Minimum Lot | ||||
| Area (sf: square feet) | 10,442 sf | 9,165 sf | 96,600 sf | 97,567 sf |
| Minimum Lot | ||||
| Frontage | 120 feet | 79 feet | 250 feet | 392 feet |
| Front Yard Setback |
30 feet | 17 feet | 60 feet | 40 feet |
| Rear Yard Setback | 35 feet | 25 feet | 60 feet | 40 feet (north side) |
| Side Yard Setbacks | 11 feet (west side) |
10 feet | 35 feet | 20 feet (south side) |
| 9 feet (east side) | 20 feet (east side) |
|||
| Maximum Gross | ||||
| Floor Area | Not Applicable | Not Applicable | 90,000 sf | 70,000 sf |
| ~ | ||||
| Open Space Requirement | Not Applicable | Not Applicable | 35% | 45% |
| Total Lot Coverage | 25 percent | 25 percent | None Required | None Required |
| Maximum | 2 1/2 stories | 2 1/2 stories | ||
| Height * | up to 35 feet | up to 35 feet | 60 feet** | 45 feet |
Swampscott Swimming Pool Regulations
Outdoor Private Swimming Pool: An outdoor private swimming pool, including an in-ground, above ground or on-ground pool, hot tub or spa shall be provided with a barrier which shall comely with the following:
1. The top of the barrier shall be at least 48 inches above finished ground level measured on the side of the barrier which faces away from the swimming pool. The maximum vertical clearance between finished ground level and the barrier shall be two inches measured on the site of the barrier which faces away from the swimming pool. Where the top of the pool structure is above finished ground level, such as an above-ground pool, the barrier shall be at finished ground level, such as the pool structure, or shall be mounted on top of the pool structure. Where the barrier is mounted on top of the pool structure, the maximum vertical clearance between the top of the pool structure and the bottom of the barrier shall be four inches.
2. Openings in the barrier shall not allow passage of a four-inch diameter sphere.
3. Solid barriers shall not contain indentations or protrusions except for normal construction tolerances and tooled masonry joints.
4. Where the barrier is composed of horizontal and vertical members and the distance between the tops of the horizontal members is less than 45 inches, the horizontal members shall be located on the swimming pool side of the fence. Spacing between vertical members shall not exceed 1 3/4 inches in width. Decorative cutouts shall not exceed 1 3/4 inches in width.
5. Where the barrier is composed of horizontal and vertical members and the distance between the tops of the horizontal members is 45 inches or more, spacing between vertical members shall not exceed 4 inches. Decorative cutouts shall not exceed 1 3/4 inches in width.
6. Maximum mesh size for chain link fences shall be 1 1/4 inch square unless the fence is provided with slats fastened at the top or bottom which reduce the openings to not more than 1 3/4 inches.
7. Where the barrier is composed of diagonal members, such as lattice fence, the maximum opening formed by the diagonal members shall be more than 1 3/4 inches.
8. Access gates shall comply with the requirements of 780 CMR 421.10.1 items 1 through 7, and shall be equipped to accommodate a locking device. Pedestrian access gates shall open outwards away from the pool and shall be self-closing and have a self-latching device. Where the release mechanism of the self-latching device is located less than 54 inches from the bottom of the gate:
(a) the release mechanism shall be located on the pool side of the gate at least three inches below the top of the gate; and
(b) the gate and barrier shall not have an opening greater than 1/2 inch within 18 inches of the release mechanism.
http://www.town.swampscott.ma.us/
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!
Image courtesy of Mr. T in DC, Flickr.
