Section 1. That sections 971.01, 971.04, 971.05, 971.06, | 16 |
971.07, 971.08, 971.09, 971.10, 971.33, 971.34, and 971.99 be | 17 |
amended, sections 971.04 (971.09), 971.05 (971.10), 971.06 | 18 |
(971.11), 971.07 (971.12), 971.08 (971.13), 971.09 (971.14), and | 19 |
971.10 (971.15) be amended for the purpose of adopting new section | 20 |
numbers as indicated in parentheses, and new sections 971.02, | 21 |
971.03, 971.04, 971.05, 971.06, 971.07, 971.08, 971.16, 971.17, | 22 |
and 971.18 and section 971.071 of the Revised Code be enacted as | 23 |
follows: | 24 |
(F) "Preferred partition fence" means a partition fence that | 56 |
is a woven wire fence, either standard or high tensile, with one | 57 |
or two strands of barbed wire located not less than forty-eight | 58 |
inches from the ground or a nonelectric high tensile fence of at | 59 |
least seven strands and that is constructed in accordance with the | 60 |
United States natural resources conservation service conservation | 61 |
practice standard for fences, code 382. "Preferred partition | 62 |
fence" includes a barbed wire, electric, or live fence, provided | 63 |
that the owners of adjoining properties agree, in writing, to | 64 |
allow such fences. | 65 |
Sec. 971.04. Nothing in this chapter prevents the owners of | 91 |
adjoining properties from entering into a written agreement that | 92 |
states that no fence is needed between the properties, a fence | 93 |
other than a preferred partition fence may be built and maintained | 94 |
pursuant to division (C)(1) of section 971.02 of the Revised Code, | 95 |
or the rights and obligations of the owners are different from | 96 |
what is established in this chapter. The agreement shall be filed | 97 |
with the applicable county recorder and placed in the partition | 98 |
fence record established under section 971.15 of the Revised Code. | 99 |
In addition, the agreement runs with the properties that are | 100 |
subject to the agreement. | 101 |
Sec. 971.05. (A) If there is evidence that a partition fence | 102 |
previously existed between the adjoining properties of two owners, | 103 |
one of the owners, or both, may file an affidavit with the | 104 |
applicable county recorder to be placed in the partition fence | 105 |
record established under section 971.15 of the Revised Code | 106 |
stating that a partition fence existed between the adjoining | 107 |
properties within two years prior to the filing of the affidavit. | 108 |
The affidavit also shall specify the location of the properties | 109 |
and that the fence has been removed and not replaced. The | 110 |
affidavit shall be filed no later than one year after the | 111 |
effective date of this section. | 112 |
(B) The owners of adjoining properties shall build and | 124 |
maintain in good repair a partition fence in equitable shares in | 125 |
accordance with this chapter if there is evidence that a partition | 126 |
fence previously existed between the adjoining properties or if | 127 |
either of the owners of the adjoining properties, or the previous | 128 |
owners of the adjoining properties, has or had filed an affidavit | 129 |
with the applicable county recorder under section 971.05 of the | 130 |
Revised Code. However, the owners of the adjoining properties are | 131 |
not required to build and maintain in good repair a partition | 132 |
fence in equitable shares if the owners enter or the previous | 133 |
owners entered, as applicable, into an agreement in accordance | 134 |
with section 971.04 of the Revised Code. | 135 |
(C)(1) If a partition fence is removed by an owner and not | 136 |
replaced within one year after removal, the owner
who removed the | 137 |
partition fence shall file an affidavit with the applicable county | 138 |
recorder to be placed in the partition fence record established | 139 |
under section 971.15 of the Revised Code stating that a partition | 140 |
fence existed between the adjoining properties within one year | 141 |
prior to the filing of the affidavit. The affidavit also shall | 142 |
specify the location of the properties and state that the fence | 143 |
has been removed and not replaced. | 144 |
Sec. 971.07. (A) If a partition fence does not exist between | 153 |
adjoining properties, there is no evidence that a partition fence | 154 |
previously existed, an affidavit has not been filed with the | 155 |
applicable county recorder in accordance with section 971.05 or | 156 |
971.06 of the Revised Code, or a written agreement between the | 157 |
owners of adjoining properties has not been filed with the | 158 |
applicable county recorder in accordance with section 971.04 of | 159 |
the Revised Code and an owner wants to build a partition fence, | 160 |
that owner shall bear the costs of building and maintaining in | 161 |
good repair the partition fence. The owner may file with the | 162 |
applicable county recorder an affidavit that specifies the costs | 163 |
incurred by the owner to build the partition fence. Each year | 164 |
after the fence is built, the owner may file with the applicable | 165 |
county recorder an affidavit that specifies the costs incurred | 166 |
that year by the owner to maintain the fence in good repair. | 167 |
(B) If an owner of adjoining property that did not assist in | 168 |
bearing the costs of building and maintaining in good repair a | 169 |
partition fence, or any successor in interest of the property, | 170 |
subsequently uses the fence to keep livestock enclosed on the | 171 |
property within thirty years after the fence was built, the owner | 172 |
that built the fence, or any successor in interest of the | 173 |
property, may file a claim for reimbursement of a proportionate | 174 |
share of
the total cost of building and maintaining in good | 175 |
repair the
partition fence with the owner of the adjoining | 176 |
property or that
owner's successor in interest, provided that an | 177 |
affidavit has been
filed under division (A) of this section. A | 178 |
reimbursement claimed under this division shall equal the total | 179 |
cost of building and maintaining the partition fence in good | 180 |
repair minus one-thirtieth of the total cost multiplied by the | 181 |
number of years, including parts of a year, that are included in | 182 |
the period beginning on the date on which the affidavit was filed | 183 |
and ending on the date on which the claim for reimbursement is | 184 |
made. An owner that receives a
claim for reimbursement under this | 185 |
division promptly shall pay it.
In addition, if necessary, the | 186 |
owners shall modify the partition
fence so that it complies with | 187 |
the standards for preferred
partition fences established in this | 188 |
chapter. The owners shall
equally divide the costs of the | 189 |
modification of the partition
fence. | 190 |
(C) If the owner of adjoining property, or that owner's | 191 |
successor in interest, fails to pay the claim for reimbursement of | 192 |
the proportionate share of the total cost of building and | 193 |
maintaining in
good repair the partition fence that was filed | 194 |
under division (B)
of this section, the owner that filed the | 195 |
claim for reimbursement
may file an action in a court of | 196 |
competent jurisdiction to recover
not more than the proportionate | 197 |
share of the total cost of building and
maintaining in good | 198 |
repair the partition fence. | 199 |
(D) If the owner of adjoining property, or that owner's | 200 |
successor in interest, pays the claim for reimbursement filed by | 201 |
the owner that built and maintained in good repair the partition | 202 |
fence under division (B) of this section or is required to | 203 |
reimburse that owner by a court under division (C) of this | 204 |
section, the owner of the adjoining property, or that owner's | 205 |
successor in interest, subsequently is subject to section 971.06 | 206 |
of the Revised Code. | 207 |
Sec. 971.08. (A) If an owner chooses to build a partition | 220 |
fence and the owner of adjoining property does not share in the | 221 |
construction of the fence, the owner building the fence, or a | 222 |
contractor hired by the owner, may enter on the adjoining property | 223 |
for no more than ten feet for the length of the fence to build and | 224 |
maintain in good repair the fence. The owner or contractor | 225 |
building the fence is not guilty of a violation of section 2911.21 | 226 |
of the Revised Code or an ordinance of a municipal corporation | 227 |
that is substantially equivalent, provided that the owner or | 228 |
contractor does not enter onto the property beyond the ten feet | 229 |
specified in this division. However, that owner or contractor is | 230 |
liable for all damages caused by the entry onto the adjoining | 231 |
property, including damages to crops. | 232 |
(3) When a partition fence is on a township or county line, | 258 |
the
boards of township trustees of the adjacent townships have | 259 |
concurrent jurisdiction, and the board of township trustees of | 260 |
either of the townships may be called to perform the applicable | 261 |
duties established in this chapter. Either party to the complaint | 262 |
may call the board of the other township, in which case they shall | 263 |
act jointly, but a separate record shall be made in both | 264 |
townships. | 265 |
(B) If a complaint is filed with a board of township | 266 |
trustees, the board, after not less than ten days'
written notice | 267 |
to all adjoining landownersowners of the time and place of | 268 |
meeting,
shall view the fence or premises where suchthe fence is | 269 |
located or is to be built, and assign,
in writing, to each person | 270 |
his equal share thereof,
to be constructed or kept in repair by | 271 |
him. At the meeting, the board shall determine whether a partition | 272 |
fence exists, regardless of whether it is in disrepair, or there | 273 |
is evidence that a partition fence previously existed. If there is | 274 |
no evidence that a partition fence exists, even in disrepair, or | 275 |
if there is no evidence that a partition fence previously existed, | 276 |
the board shall review the applicable county recorder's records to | 277 |
determine whether an affidavit has been filed in accordance with | 278 |
section 971.05, 971.06, or 971.07 of the Revised Code or an | 279 |
agreement has been filed in accordance with section 971.04 of the | 280 |
Revised Code. | 281 |
(D)(1) At the next regularly scheduled meeting of the board | 286 |
after viewing
the fence or premises and reviewing the applicable | 287 |
county
recorder's records, if applicable, the board shall | 288 |
determine if a
partition fence is required to be built or | 289 |
maintained in good
repair, as applicable. If the board determines | 290 |
that a partition
fence is required to be built or maintained, the | 291 |
board shall
decide each owner's responsibility for building or | 292 |
maintaining in
good repair the partition fence. | 293 |
(2) If the board finds that both owners are responsible, the | 294 |
board shall equitably assign, in writing, each owner's share of | 295 |
building or maintaining in good repair the partition fence. When | 296 |
making an equitable assignment, the board may assign a specific | 297 |
portion of the partition fence to be built or maintained in good | 298 |
repair, or the board may assign a portion of the total cost of | 299 |
building or maintaining in good repair the partition fence if the | 300 |
owners have submitted to the board an estimate from a contractor | 301 |
of the necessary cost to perform the
applicable work. If the | 302 |
partition fence does or will contain
livestock, the board shall | 303 |
include in the equitable assignment the
cost of building or | 304 |
modifying the fence to meet the standards for
preferred partition | 305 |
fences established in this chapter. | 306 |
(G)(1) If either owner does not agree to the board's | 335 |
assignment of responsibility under division (D)(2) of this section | 336 |
for building or maintaining in good repair a partition fence, the | 337 |
owner, not later than thirty days after the assignment has been | 338 |
made, may deliver to the board and the other owner a written | 339 |
request for binding arbitration. An owner that requests binding | 340 |
arbitration also shall deliver a copy of the request to the court | 341 |
of common pleas of the county in which the arbitration is to be | 342 |
held, which shall be the county in which the owner that seeks the | 343 |
binding arbitration resides. If either owner requests binding | 344 |
arbitration, the board shall submit a report of its recommendation | 345 |
of assignment that is made under division (D)(2) of this section | 346 |
or of its finding that is made under division (D)(3) of this | 347 |
section, as applicable, to the court of common pleas in which the | 348 |
arbitration is to be held. | 349 |
(3) Not later than thirty days after appointment of an | 357 |
arbitrator, each owner and the board shall deliver to the | 358 |
arbitrator a recommendation for the assignment of responsibility | 359 |
for building or maintaining in good repair the partition fence. | 360 |
Not later than sixty days after appointment of the arbitrator, the | 361 |
arbitrator shall approve one of the recommendations submitted or | 362 |
assign responsibility for building or maintaining in good repair | 363 |
the partition fence based on the arbitrator's judgment. | 364 |
Sec. 971.05. Sec. 971.10. The cost due the township
fiscal officer | 376 |
and the board of township
trustees for making the assignment set | 377 |
forth in section 971.04971.09 of the Revised
Code shall be taxed | 378 |
equally against each of the persons and, if not paid to
the
fiscal | 379 |
officer within thirty days from the date of
the
assignment, shall | 380 |
be
certified by
the fiscal officer to the
county auditor, with a | 381 |
correct
description of the lands and the
amount charged against | 382 |
each portion. | 383 |
Sec. 971.07. Sec. 971.12. (A) If either personowner fails to | 389 |
build or maintain in good repair the
portion of a partition fence | 390 |
assigned to himthe owner under section 971.04971.09 of the | 391 |
Revised Code, the board of township trustees, upon the
application | 392 |
of the aggrieved personowner, shall award the contract to
the | 393 |
lowest responsible bidder agreeing to furnish the labor and | 394 |
material, and build suchor maintain the fence according to the | 395 |
specifications
proposed by the board, after advertising for bids | 396 |
once a week for
three consecutive weeks in a newspaper of general | 397 |
circulation in
the county in which the township is situated. | 398 |
Sec. 971.08. Sec. 971.13. When the work provided for under section | 407 |
971.12 of the Revised Code is completed to the satisfaction
of the | 408 |
board of
township trustees, it shall certify the costs to
the | 409 |
township
fiscal officer. If the costs are not
paid within thirty | 410 |
days,
the township fiscal officer shall
certify them to the county | 411 |
auditor with a statement of the cost of
the construction or | 412 |
maintenance and incidental costs
incurred by the trustees
and a | 413 |
correct description of each piece of land
upon which
the costs are | 414 |
assessed. | 415 |
Sec. 971.09. Sec. 971.14. The county auditor shall place the | 416 |
amounts
certified, as
provided in section 971.08971.13 of the | 417 |
Revised Code, upon
the tax duplicate, which
amounts shall become a | 418 |
lien and be
collected as other taxes. The board of
township | 419 |
trustees
shall certify the amount due each person for building
or | 420 |
maintaining the
fence and the amount due each trustee and
the | 421 |
township fiscal officer for
services rendered. In
anticipation of | 422 |
the collection of the amounts, the
auditor shall draw orders for | 423 |
the
payment of the amounts out of
the county treasury. | 424 |
Sec. 971.10. Sec. 971.15. The applicable county recorder shall | 425 |
keep a book known as the "Partition Fence
Recordpartition fence | 426 |
record" and all divisions of. All agreements between the owners of | 427 |
adjoining properties filed in accordance with this chapter, all | 428 |
affidavits filed by owners in accordance with this chapter, and | 429 |
all assignments of and findings and decisions regarding | 430 |
responsibility for building and maintaining in good repair | 431 |
partition fences made under this chapter shall be
recorded | 432 |
therein, andin the record. A document recorded in the record | 433 |
shall be final between the parties thereto and
successive owners | 434 |
thereafter, until such divisions become unequal by a sale or | 435 |
division of land or a portion thereof, in which case a new | 436 |
division may be
hadmodified by a subsequent document. All | 437 |
documents recorded in the record shall describe the land where a | 438 |
partition fence is located and the portion of the fence assigned | 439 |
to each applicable owner. In addition, the documents shall | 440 |
describe the purposes and use of the partition fence. | 441 |
Sec. 971.17. (A) Not fewer than twenty-eight days prior to | 476 |
removing a partition fence, an owner shall notify the owner of | 477 |
adjoining property in writing that the owner intends to remove the | 478 |
partition fence. The notice may be delivered personally or by | 479 |
certified mail, return receipt requested, to the last known | 480 |
address of the adjoining owner. If the notice delivered by | 481 |
certified mail is refused or unclaimed, the notice may be | 482 |
delivered by ordinary mail. If the notice delivered by ordinary | 483 |
mail is returned for failure of delivery, or if the address of the | 484 |
adjoining owner is unknown and cannot be ascertained with | 485 |
reasonable diligence, notice may be served by publication once a | 486 |
week for three consecutive weeks in a newspaper of general | 487 |
circulation in the county in which the partition fence is located. | 488 |
(D) No owner shall place any debris accumulated from the | 498 |
removal of a partition fence on adjoining property without | 499 |
entering into a written agreement with the owner of the adjoining | 500 |
property. An adjoining owner who has not entered into a written | 501 |
agreement under this division shall have a cause of action against | 502 |
the owner that placed debris from the removal of a partition fence | 503 |
on the adjoining owner's property for the cost of removing that | 504 |
debris. Any action against the owner may include any attorney's | 505 |
fees. | 506 |
Sec. 971.34. If the owner or tenant occupying land, neglects | 516 |
or refuses to
cut brush, briers, thistles, or other noxious weeds, | 517 |
as provided in section
971.33 of the Revised Code, an owner or | 518 |
occupant of land abutting on the line
or partition fence, after | 519 |
having given the owner or tenant not less than ten
days' notice to | 520 |
cut or remove them, may notify the board of township trustees
of | 521 |
the township in which the land is situated, who shall forthwith | 522 |
view the
premises, and if satisfied that there is just cause of | 523 |
complaint, shall cause
them to be cut, by letting the work to the | 524 |
lowest bidder, or by entering into
a private contract therefor. | 525 |
(E) Prosecution for a violation of division (B) of section | 548 |
971.08 or division (C) of section 971.12 of the Revised Code does | 549 |
not preclude prosecution for a violation of any other section of | 550 |
the Revised Code. One or more acts, a series of acts, or a course | 551 |
of behavior that can be prosecuted under this section or any other | 552 |
section of the Revised Code may be prosecuted under this section, | 553 |
the other section, or both sections. | 554 |
Section 2. That existing sections 971.01, 971.04, 971.05, | 555 |
971.06, 971.07, 971.08, 971.09, 971.10, 971.33, 971.34, and 971.99 | 556 |
and sections 971.02, 971.03, 971.11, 971.12, 971.13, 971.14, | 557 |
971.15, 971.16, 971.17, 971.18, 971.21, 971.22, 971.23, 971.24, | 558 |
971.25, 971.26, 971.27, 971.28, 971.29, 971.30, 971.31, and 971.32 | 559 |
of the Revised Code are hereby repealed. | 560 |