HF 2111 (LSB 5534YH (6) 87)

HOUSE FILE 2111

BY  HEARTSILL

A BILL FOR

An Act relating to controversies involving fence viewers.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 359.17, subsection 1, Code 2018, is amended to read as follows:
   1.  The board of township trustees in each township shall consist of three registered voters of the township. However, in townships with a taxable valuation for property tax purposes of two hundred fifty million dollars or more, the board of township trustees shall consist of five registered voters of the township. The trustees shall act as fence viewers as provided in chapter 359A and shall perform other duties assigned them by law. The board of trustees shall meet not less than two times a year. At least one of the meetings shall be scheduled to meet the requirements of section 359.49.
    Sec. 2.  NEW SECTION.  359A.2A  Fence viewers —— township trustees —— authority —— conflict of interest. 
   1.  The trustees of the township where a controversy arises under this chapter shall serve as fence viewers. The fence viewers shall have authority to hear and decide all questions related to the controversy as provided in this chapter. 
   2.  a.  A fence viewer who may have a conflict of interest in deciding a question related to the controversy must disclose the possible conflict of interest to the parties and the other fence viewers prior to the fence viewers participating in the matter by conducting a hearing or making a decision under section 359A.4. 
   b.  A fence viewer who has a conflict of interest in deciding a question related to the controversy is disqualified from participating in the matter. The disqualification shall be made by the election of the fence viewer or unanimous vote of the fence viewers who do not have a conflict of interest in the controversy. However, if three or more fence viewers do not have a conflict of interest in the controversy, the disqualification shall be made by a majority vote of those fence viewers. A declaration of the conflict of interest shall be sent to the board of supervisors of each county where the party’s adjoining property boundary subject of the controversy is located. 
   3.  A conflict of interest exists when a fence viewer is asked to make a determination that would directly affect the personal or financial interests of the fence viewer or an immediate family member of the fence viewer. The immediate family member shall be limited to any of the following:
   a.  A spouse.
   b.  A child, stepchild, grandchild, parent, stepparent, grandparent, sibling, stepsibling, half sibling, aunt, uncle, niece, or nephew.
   c.  The spouse of any individual described in paragraph “b”. 
   4.  Upon the disqualification of a fence viewer, the board of supervisors shall appoint a qualified substitute fence viewer only for purposes of deciding the controversy. However, this subsection does not apply if the township clerk selects a fence viewer as provided in section 359A.14.
   5.  The board of supervisors may adopt an ordinance providing for any of the following:
   a.  Other circumstances in which a trustee may have a conflict of interest. 
   b.  Procedures for providing notice of a conflict of interest, the disqualification of a fence viewer who has a conflict of interest, or the appointment of a qualified substitute fence viewer due to the conflict of interest.
   6.  Notwithstanding other provisions in the section to the contrary, a fence viewer who may or does have a conflict of interest in a controversy may participate in the matter, including by hearing and deciding all questions related to the controversy, if each party to the controversy signs a waiver. The waiver shall state that the party has been notified of the fence viewer’s conflict of interest and agrees to the fence viewer’s participation in the matter. The waiver shall be attached to the order issued pursuant to section 359A.4.
    Sec. 3.  Section 359A.3, Code 2018, is amended to read as follows:
   359A.3  Powers of fence viewers Notice and hearing.
   The fence viewers shall have power to determine any controversy arising under this chapter, upon giving give five days’ notice in writing to the opposite party or all parties, prescribing to the controversy. The notice shall prescribe the time and place of meeting to hear and determine the matter named the hearing to decide any and all matters that are part of the controversy as described in said the notice. Upon request of any landowner, the fence viewers shall give such the notice to all adjoining landowners liable for the erection, maintenance, rebuilding, trimming, or cutting back, or repairing of a partition fence, or to pay for an existing hedge or fence.  The notice must include the names of the fence viewers and state whether a fence viewer disclosed a possible conflict of interest or whether a substitute fence viewer was appointed due to a fence viewer’s disqualification pursuant to section 359A.2A.
    Sec. 4.  Section 359A.4, Code 2018, is amended to read as follows:
   359A.4  Decision Hearing —— decision —— order —— deposit.
   1.  At said the time and place described in section 359A.3, the fence viewers shall meet to hear and determine by decide the controversy. The fence viewers shall issue a written order that specifies the obligations, rights, and duties of the respective parties in such matter, and. 
   2.  a.  If the fence viewers determine the erection of a fence may be unfeasible in any location which constitutes the adjoining parties’ property boundary, the fence viewers shall conduct a site evaluation. The fence viewers may request assistance by the county engineer in the county where the adjoining properties’ boundary is situated. The determination may be based on any of the following:
   (1)  Topography.
   (2)  Terrain.
   (3)  Terraces.
   (4)  Land slope.
   (5)  Unstable ground.
   (6)  The presence of surface water, drainage systems, sinkholes, or water wells.
   (7)  Easements.
   (8)  Utilities.
   (9)  Available area. 
   b.  If the fence viewers determine the erection of a fence is unfeasible as provided in the site evaluation, the fence viewers shall assist the parties in reaching an agreement as provided in sections 359A.12 and 359A.13. However, if the parties cannot reach such agreement within sixty days after the site evaluation is completed, the fence viewers shall order the fence’s erection. The fence shall be erected as otherwise provided in this section, except for any location identified as unfeasible in the site evaluation. For that location, the fence viewers shall order the fence to be erected at the most feasible location on the property of an adjoining owner that is closest to that adjoining owner’s property boundary.
   3.  a.  The order shall assign to each owner the part which the owner shall erect, maintain, rebuild, trim or cut back, or pay for, and fix the value thereof, and prescribe the time within which the same shall be completed or paid for, and, in case of repair, may specify the kind of repairs to be made.
   b.  If the fence is not erected, rebuilt, or repaired within the time prescribed in the order, the fence viewers shall require the complaining landowner to deposit with the fence viewers a sum an amount of money sufficient to pay for the erecting, rebuilding, trimming, cutting back or repairing such fence together with the fees of the fence viewers and costs. Such complaining landowner shall be reimbursed as soon as the costs and fees assessed against the party in default are collected as provided in section 359A.6.
   4.  The order shall include the names of the fence viewers. The order shall state whether a fence viewer disclosed a possible conflict of interest, and whether a substitute fence viewer was appointed due to a disqualification pursuant to section 359A.2A. Any waiver of a conflict of interest signed by a party shall be attached to the order.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   GENERAL. This bill amends provisions in Iowa’s fence law (Code chapter 359A) that in part governs the construction (erection) or maintenance of fences existing on the property boundary between land of adjoining owners (sometimes referred to as partition fences), in either circumstances. The first circumstance involves a controversy between the owners that results in an order being issued by the board of trustees of the township where the property boundary is located, who assume the title of fence viewers (Code sections 359A.3 through 359A.11 and Code section 359A.22). The second circumstance involves a private agreement entered into by the owners which is recorded in the county where the township is located (Code sections 359A.12 and 359A.13). 
   BILL’S PROVISIONS —— CONFLICTS OF INTEREST. The bill provides for a fence viewer who has a conflict of interest involving any question related to the controversy: If the fence viewer may have a conflict of interest, the fence viewer must make disclosure of the possible conflict of interest to the parties and other fence viewers. If the fence viewer has an actual conflict of interest, the fence viewer must be disqualified either at the fence viewer’s election or by vote of the other trustees. Either action must be described in the fence viewers’ notice to the parties and order. A conflict of interest occurs when a fence viewer is asked to make a determination that would directly affect the personal or financial interests of the fence viewer or immediate family member. If the trustee is disqualified, the county’s board of supervisors must appoint a substitute (unless the township clerk selects a fence viewer in cases in which the adjoining property is located in more than one township). The board of supervisors may also adopt an ordinance providing for additional circumstances which create a conflict of interest and procedures for the disqualification or replacement of a fence viewer. The bill provides that the fence viewer may participate in the matter if the parties to the controversy are notified of the conflict and sign a waiver. 
   BILL’S PROVISIONS —— ERECTION OF FENCES BASED ON A DETERMINATION OF UNFEASIBILITY. The bill provides that the fence viewers may determine that the erection of a fence on the property boundary between the adjoining properties is unfeasible pursuant to a site evaluation conducted by the fence viewers. The determination may be based on a characteristic of the land (e.g., land slope), the presence of water (e.g., located in a floodplain), some prior right (e.g., an easement), or a suitable area is unavailable. In that case, the trustees must assist the parties in reaching an agreement or if that fails take account of the land’s characteristics in the order. The order shall require the fence be erected at a feasible location that is closest to the adjoining party’s property boundary. 
   BACKGROUND. The owner of property has a right to erect a fence on the property boundary between the owner’s property and an adjacent owner (Code section 359A.16). A controversy requiring participation by a township’s fence viewers may be triggered by an owner demanding that the adjoining owner or adjoining owners share in the costs of erecting, maintaining, or repairing the fence. The fence viewers must provide notice to each adjacent owner that they are parties to the controversy. The fence viewers act as adjudicators, by determining the obligations, rights, and duties of the respective parties, including contributions (payments) which must be set forth in an order and be assessed and collected as ordinary taxes (Code section 359A.6). The order is subject to appeal in district court (Code sections 359A.23 through 359A.25).