Section 1. That sections 971.01, 971.04, 971.05, 971.06, | 15 |
971.07, 971.08, 971.09, 971.10, 971.33, 971.34, and 971.99 be | 16 |
amended, sections 971.04 (971.09), 971.05 (971.10), 971.06 | 17 |
(971.11), 971.07 (971.12), 971.08 (971.13), 971.09 (971.14), and | 18 |
971.10 (971.15) be amended for the purpose of adopting new section | 19 |
numbers as indicated in parentheses, and new sections 971.02, | 20 |
971.03, 971.04, 971.05, 971.06, 971.07, 971.08, 971.16, 971.17, | 21 |
and 971.18 of the Revised Code be enacted as follows: | 22 |
(F) "Preferred partition fence" means a partition fence that | 54 |
is a woven wire fence, either standard or high tensile, with one | 55 |
or two strands of barbed wire located not less than forty-eight | 56 |
inches from the ground or a nonelectric high tensile fence of at | 57 |
least seven strands and that is constructed in accordance with the | 58 |
United States natural resources conservation service conservation | 59 |
practice standard for fences, code 382. "Preferred partition | 60 |
fence" includes a barbed wire, electric, or live fence, provided | 61 |
that the owners of adjoining properties agree, in writing, to | 62 |
allow such fences. | 63 |
Sec. 971.04. Nothing in this chapter prevents the owners of | 89 |
adjoining properties from entering into a written agreement that | 90 |
states that no fence is needed between the properties, a fence | 91 |
other than a preferred partition fence may be built and maintained | 92 |
pursuant to division (C)(1) of section 971.02 of the Revised Code, | 93 |
or the rights and obligations of the owners are different from | 94 |
what is established in this chapter. The agreement shall be filed | 95 |
with the applicable county recorder and placed in the partition | 96 |
fence record established under section 971.15 of the Revised Code. | 97 |
In addition, the agreement runs with the properties that are | 98 |
subject to the agreement. | 99 |
Sec. 971.05. (A) If there is evidence that a partition fence | 100 |
previously existed between the adjoining properties of two owners, | 101 |
one of the owners, or both, may file an affidavit with the | 102 |
applicable county recorder to be placed in the partition fence | 103 |
record established under section 971.15 of the Revised Code | 104 |
stating that a partition fence existed between the adjoining | 105 |
properties within ten years prior to the filing of the affidavit. | 106 |
The affidavit also shall specify the location of the properties | 107 |
and that the fence has been removed and not replaced. The | 108 |
affidavit shall be filed no later than one year after the | 109 |
effective date of this section. | 110 |
(B) The owners of adjoining properties shall build and | 122 |
maintain in good repair a partition fence in equitable shares in | 123 |
accordance with this chapter if there is evidence that a partition | 124 |
fence previously existed between the adjoining properties or if | 125 |
either of the owners of the adjoining properties, or the previous | 126 |
owners of the adjoining properties, has or had filed an affidavit | 127 |
with the applicable county recorder under section 971.05 of the | 128 |
Revised Code. However, the owners of the adjoining properties are | 129 |
not required to build and maintain in good repair a partition | 130 |
fence in equitable shares if the owners enter or the previous | 131 |
owners entered, as applicable, into an agreement in accordance | 132 |
with section 971.04 of the Revised Code. | 133 |
(C)(1) If a partition fence is removed by an owner and not | 134 |
replaced within one year after removal, the owner of adjoining | 135 |
property may file an affidavit with the applicable county | 136 |
recorder to be placed in the partition fence record established | 137 |
under section 971.15 of the Revised Code stating that a partition | 138 |
fence existed between the adjoining properties within one year | 139 |
prior to the filing of the affidavit. The affidavit also shall | 140 |
specify the location of the properties and state that the fence | 141 |
has been removed and not replaced. | 142 |
Sec. 971.07. (A) If a partition fence does not exist between | 151 |
adjoining properties, there is no evidence that a partition fence | 152 |
previously existed, an affidavit has not been filed with the | 153 |
applicable county recorder in accordance with section 971.05 or | 154 |
971.06 of the Revised Code, or a written agreement between the | 155 |
owners of adjoining properties has not been filed with the | 156 |
applicable county recorder in accordance with section 971.04 of | 157 |
the Revised Code and an owner wants to build a partition fence, | 158 |
that owner shall bear the costs of building and maintaining in | 159 |
good repair the partition fence. The owner may file with the | 160 |
applicable county recorder an affidavit that specifies the costs | 161 |
incurred by the owner to build the partition fence. Each year | 162 |
after the fence is built, the owner may file with the applicable | 163 |
county recorder an affidavit that specifies the costs incurred | 164 |
that year by the owner to maintain the fence in good repair. | 165 |
(B) If an owner of adjoining property that did not assist in | 166 |
bearing the costs of building and maintaining in good repair a | 167 |
partition fence, or any successor in interest of the property, | 168 |
subsequently uses the fence to keep livestock enclosed on the | 169 |
property within thirty years after the fence was built, the owner | 170 |
that built the fence, or any successor in interest of the | 171 |
property, may file a claim for reimbursement of fifty per cent of | 172 |
the total cost of building and maintaining in good repair the | 173 |
partition fence with the owner of the adjoining property or that | 174 |
owner's successor in interest, provided that an affidavit has been | 175 |
filed under division (A) of this section. An owner that receives a | 176 |
claim for reimbursement under this division promptly shall pay it. | 177 |
In addition, if necessary, the owners shall modify the partition | 178 |
fence so that it complies with the standards for preferred | 179 |
partition fences established in this chapter. The owners shall | 180 |
equally divide the costs of the modification of the partition | 181 |
fence. | 182 |
(C) If the owner of adjoining property, or that owner's | 183 |
successor in interest, fails to pay the claim for reimbursement of | 184 |
fifty per cent of the total cost of building and maintaining in | 185 |
good repair the partition fence that was filed under division (B) | 186 |
of this section, the owner that filed the claim for reimbursement | 187 |
may file an action in a court of competent jurisdiction to recover | 188 |
not more than fifty per cent of the total cost of building and | 189 |
maintaining in good repair the partition fence. | 190 |
(D) If the owner of adjoining property, or that owner's | 191 |
successor in interest, pays the claim for reimbursement filed by | 192 |
the owner that built and maintained in good repair the partition | 193 |
fence under division (B) of this section or is required to | 194 |
reimburse that owner by a court under division (C) of this | 195 |
section, the owner of the adjoining property, or that owner's | 196 |
successor in interest, subsequently is subject to section 971.06 | 197 |
of the Revised Code. | 198 |
Sec. 971.08. (A) If an owner chooses to build a partition | 204 |
fence and the owner of adjoining property does not share in the | 205 |
construction of the fence, the owner building the fence, or a | 206 |
contractor hired by the owner, may enter on the adjoining property | 207 |
for no more than ten feet for the length of the fence to build and | 208 |
maintain in good repair the fence. The owner or contractor | 209 |
building the fence is not guilty of a violation of section 2911.21 | 210 |
of the Revised Code or an ordinance of a municipal corporation | 211 |
that is substantially equivalent, provided that the owner or | 212 |
contractor does not enter onto the property beyond the ten feet | 213 |
specified in this division. However, that owner or contractor is | 214 |
liable for all damages caused by the entry onto the adjoining | 215 |
property, including damages to crops. | 216 |
When a partition fence is on a township or county line, the | 230 |
boards of township trustees of the adjacent townships have | 231 |
concurrent jurisdiction, and the board of township trustees of | 232 |
either of the townships may be called to perform the applicable | 233 |
duties established in this chapter. Either party to the complaint | 234 |
may call the board of the other township, in which case they shall | 235 |
act jointly, but a separate record shall be made in both | 236 |
townships. | 237 |
(B) If a complaint is filed with a board of township | 238 |
trustees, the board, after not less than ten days'
written notice | 239 |
to all adjoining landownersowners of the time and place of | 240 |
meeting,
shall view the fence or premises where suchthe fence is | 241 |
located or is to be built, and assign,
in writing, to each person | 242 |
his equal share thereof,
to be constructed or kept in repair by | 243 |
him. At the meeting, the board shall determine whether a partition | 244 |
fence exists, regardless of whether it is in disrepair, or there | 245 |
is evidence that a partition fence previously existed. If there is | 246 |
no evidence that a partition fence exists, even in disrepair, or | 247 |
if there is no evidence that a partition fence previously existed, | 248 |
the board shall review the applicable county recorder's records to | 249 |
determine whether an affidavit has been filed in accordance with | 250 |
section 971.05, 971.06, or 971.07 of the Revised Code or an | 251 |
agreement has been filed in accordance with section 971.04 of the | 252 |
Revised Code. | 253 |
(D)(1) At the next regularly scheduled meeting of the board | 258 |
after viewing
the fence or premises and reviewing the applicable | 259 |
county
recorder's records, if applicable, the board shall | 260 |
determine if a
partition fence is required to be built or | 261 |
maintained in good
repair, as applicable. If the board determines | 262 |
that a partition
fence is required to be built or maintained, the | 263 |
board shall
decide each owner's responsibility for building or | 264 |
maintaining in
good repair the partition fence. | 265 |
(2) If the board finds that both owners are responsible, the | 266 |
board shall equitably assign, in writing, each owner's share of | 267 |
building or maintaining in good repair the partition fence. When | 268 |
making an equitable assignment, the board may assign a specific | 269 |
portion of the partition fence to be built or maintained in good | 270 |
repair, or the board may assign a portion of the total cost of | 271 |
building or maintaining in good repair the partition fence if the | 272 |
owners have submitted to the board an estimate from a contractor | 273 |
of the necessary cost to perform the
applicable work. If the | 274 |
partition fence does or will contain
livestock, the board shall | 275 |
include in the equitable assignment the
cost of building or | 276 |
modifying the fence to meet the standards for
preferred partition | 277 |
fences established in this chapter. | 278 |
(G)(1) If either owner does not agree to the board's | 307 |
assignment of responsibility under division (D)(2) of this section | 308 |
for building or maintaining in good repair a partition fence, the | 309 |
owner, not later than thirty days after the assignment has been | 310 |
made, may deliver to the board and the other owner a written | 311 |
request for binding arbitration. An owner that requests binding | 312 |
arbitration also shall deliver a copy of the request to the court | 313 |
of common pleas of the county in which the arbitration is to be | 314 |
held, which shall be the county in which the owner that seeks the | 315 |
binding arbitration resides. | 316 |
(3) Not later than thirty days after appointment of an | 322 |
arbitrator, each owner and the board shall deliver to the | 323 |
arbitrator a recommendation for the assignment of responsibility | 324 |
for building or maintaining in good repair the partition fence. | 325 |
Not later than sixty days after appointment of the arbitrator, the | 326 |
arbitrator shall approve one of the recommendations submitted or | 327 |
assign responsibility for building or maintaining in good repair | 328 |
the partition fence based on the arbitrator's judgment. | 329 |
Sec. 971.05. Sec. 971.10. The cost due the township
fiscal officer | 341 |
and the board of township
trustees for making the assignment set | 342 |
forth in section 971.04917.09 of the Revised
Code shall be taxed | 343 |
equally against each of the persons and, if not paid to
the
fiscal | 344 |
officer within thirty days from the date of
the
assignment, shall | 345 |
be
certified by
the fiscal officer to the
county auditor, with a | 346 |
correct
description of the lands and the
amount charged against | 347 |
each portion. | 348 |
Sec. 971.07. Sec. 971.12. (A) If either personowner fails to | 354 |
build or maintain in good repair the
portion of a partition fence | 355 |
assigned to himthe owner under section 971.04971.09 of the | 356 |
Revised Code, the board of township trustees, upon the
application | 357 |
of the aggrieved personowner, shall award the contract to
the | 358 |
lowest responsible bidder agreeing to furnish the labor and | 359 |
material, and build suchor maintain the fence according to the | 360 |
specifications
proposed by the board, after advertising for bids | 361 |
once a week for
three consecutive weeks in a newspaper of general | 362 |
circulation in
the county in which the township is situated. | 363 |
Sec. 971.08. Sec. 971.13. When the work provided for under section | 372 |
971.12 of the Revised Code is completed to the satisfaction
of the | 373 |
board of
township trustees, it shall certify the costs to
the | 374 |
township
fiscal officer. If the costs are not
paid within thirty | 375 |
days,
the township fiscal officer shall
certify them to the county | 376 |
auditor with a statement of the cost of
the construction or | 377 |
maintenance and incidental costs
incurred by the trustees
and a | 378 |
correct description of each piece of land
upon which
the costs are | 379 |
assessed. | 380 |
Sec. 971.09. Sec. 971.14. The county auditor shall place the | 381 |
amounts
certified, as
provided in section 971.08971.13 of the | 382 |
Revised Code, upon
the tax duplicate, which
amounts shall become a | 383 |
lien and be
collected as other taxes. The board of
township | 384 |
trustees
shall certify the amount due each person for building
or | 385 |
maintaining the
fence and the amount due each trustee and
the | 386 |
township fiscal officer for
services rendered. In
anticipation of | 387 |
the collection of the amounts, the
auditor shall draw orders for | 388 |
the
payment of the amounts out of
the county treasury. | 389 |
Sec. 971.10. Sec. 971.15. The applicable county recorder shall | 390 |
keep a book known as the "Partition Fence
Recordpartition fence | 391 |
record" and all divisions of. All agreements between the owners of | 392 |
adjoining properties filed in accordance with this chapter, all | 393 |
affidavits filed by owners in accordance with this chapter, and | 394 |
all assignments of and findings and decisions regarding | 395 |
responsibility for building and maintaining in good repair | 396 |
partition fences made under this chapter shall be
recorded | 397 |
therein, andin the record. A document recorded in the record | 398 |
shall be final between the parties thereto and
successive owners | 399 |
thereafter, until such divisions become unequal by a sale or | 400 |
division of land or a portion thereof, in which case a new | 401 |
division may be
hadmodified by a subsequent document. All | 402 |
documents recorded in the record shall describe the land where a | 403 |
partition fence is located and the portion of the fence assigned | 404 |
to each applicable owner. In addition, the documents shall | 405 |
describe the purposes and use of the partition fence. | 406 |
Sec. 971.17. (A) Not fewer than twenty-eight days prior to | 441 |
removing a partition fence, an owner shall notify the owner of | 442 |
adjoining property in writing that the owner intends to remove the | 443 |
partition fence. The notice may be delivered personally or by | 444 |
certified mail, return receipt requested, to the last known | 445 |
address of the adjoining owner. If the notice delivered by | 446 |
certified mail is refused or unclaimed, the notice may be | 447 |
delivered by ordinary mail. If the notice delivered by ordinary | 448 |
mail is returned for failure of delivery, or if the address of the | 449 |
adjoining owner is unknown and cannot be ascertained with | 450 |
reasonable diligence, notice may be served by publication once a | 451 |
week for three consecutive weeks in a newspaper of general | 452 |
circulation in the county in which the partition fence is located. | 453 |
(D) No owner shall place any debris accumulated from the | 463 |
removal of a partition fence on adjoining property without | 464 |
entering into a written agreement with the owner of the adjoining | 465 |
property. An adjoining owner who has not entered into a written | 466 |
agreement under this division shall have a cause of action against | 467 |
the owner that placed debris from the removal of a partition fence | 468 |
on the adjoining owner's property for the cost of removing that | 469 |
debris. Any action against the owner may include any attorney's | 470 |
fees. | 471 |
Sec. 971.34. If the owner or tenant occupying land, neglects | 481 |
or refuses to
cut brush, briers, thistles, or other noxious weeds, | 482 |
as provided in section
971.33 of the Revised Code, an owner or | 483 |
occupant of land abutting on the line
or partition fence, after | 484 |
having given the owner or tenant not less than ten
days' notice to | 485 |
cut or remove them, may notify the board of township trustees
of | 486 |
the township in which the land is situated, who shall forthwith | 487 |
view the
premises, and if satisfied that there is just cause of | 488 |
complaint, shall cause
them to be cut, by letting the work to the | 489 |
lowest bidder, or by entering into
a private contract therefor. | 490 |
(E) Prosecution for a violation of division (B) of section | 513 |
971.08 or division (C) of section 971.12 of the Revised Code does | 514 |
not preclude prosecution for a violation of any other section of | 515 |
the Revised Code. One or more acts, a series of acts, or a course | 516 |
of behavior that can be prosecuted under this section or any other | 517 |
section of the Revised Code may be prosecuted under this section, | 518 |
the other section, or both sections. | 519 |
Section 2. That existing sections 971.01, 971.04, 971.05, | 520 |
971.06, 971.07, 971.08, 971.09, 971.10, 971.33, 971.34, and 971.99 | 521 |
and sections 971.02, 971.03, 971.11, 971.12, 971.13, 971.14, | 522 |
971.15, 971.16, 971.17, 971.18, 971.21, 971.22, 971.23, 971.24, | 523 |
971.25, 971.26, 971.27, 971.28, 971.29, 971.30, 971.31, and 971.32 | 524 |
of the Revised Code are hereby repealed. | 525 |