House File 2340 - Introduced HOUSE FILE 2340 BY COMMITTEE ON AGRICULTURE (SUCCESSOR TO HF 2111) A BILL FOR An Act relating to controversies involving fence viewers. 1 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 2 TLSB 5534HV (2) 87 da/jh

H.F. 2340 Section 1. Section 359.17, subsection 1, Code 2018, is 1 amended to read as follows: 2 1. The board of township trustees in each township shall 3 consist of three registered voters of the township. However, 4 in townships with a taxable valuation for property tax purposes 5 of two hundred fifty million dollars or more, the board of 6 township trustees shall consist of five registered voters 7 of the township. The trustees shall act as fence viewers 8 as provided in chapter 359A and shall perform other duties 9 assigned them by law. The board of trustees shall meet not 10 less than two times a year. At least one of the meetings shall 11 be scheduled to meet the requirements of section 359.49 . 12 Sec. 2. NEW SECTION . 359A.2A Fence viewers —— township 13 trustees —— authority —— conflict of interest. 14 1. The trustees of the township where a controversy arises 15 under this chapter shall serve as fence viewers. The fence 16 viewers shall have authority to hear and decide all questions 17 related to matters that are part of the controversy as provided 18 in this chapter. 19 2. a. A fence viewer who may have a conflict of interest 20 in deciding a question related to a matter that is part of the 21 controversy must disclose the possible conflict of interest 22 to the parties and the other fence viewers prior to the fence 23 viewers participating in the matter by conducting a hearing or 24 making a decision under section 359A.4. 25 b. A fence viewer who has a conflict of interest in 26 deciding a question related to a matter that is part of the 27 controversy is disqualified from participating in the matter. 28 The disqualification shall be made by the election of the fence 29 viewer or unanimous vote of the fence viewers who do not have a 30 conflict of interest in the matter. However, if three or more 31 fence viewers do not have a conflict of interest in the matter, 32 the disqualification shall be made by a majority vote of those 33 fence viewers. 34 3. A conflict of interest exists when a fence viewer is 35 -1- LSB 5534HV (2) 87 da/jh 1/ 7

H.F. 2340 presented with a question to determine any matter affecting a 1 tract of land in which the fence viewer or a person related to 2 the fence viewer has an ownership or leasehold interest in that 3 tract of land. That person is related to the fence viewer by 4 being any of the following: 5 a. An immediate family member who is limited to any of the 6 following: 7 (1) A spouse. 8 (2) A child, stepchild, grandchild, parent, stepparent, 9 grandparent, sibling, stepsibling, half sibling, aunt, uncle, 10 niece, or nephew. 11 (3) The spouse of any individual described in subparagraph 12 (2). 13 b. A business associate who is limited to a person holding 14 an interest in the same business entity as the fence viewer, so 15 long as the person and the fence viewer each have a twenty-five 16 percent or greater interest in that business entity. As used 17 in this paragraph, “business entity” means a person organized 18 or formed under Iowa statute or a foreign statute, and is 19 authorized under Iowa statute to transact business in this 20 state, either on a profit or nonprofit basis. 21 4. Upon the disqualification of the fence viewer, the 22 remaining trustees shall appoint a qualified substitute 23 fence viewer to decide each question related to a matter in 24 controversy. If a trustee is not remaining, the township 25 clerk shall appoint three qualified substitute fence viewers 26 to decide each question related to a matter in controversy. 27 However, this subsection does not apply if the township clerk 28 selects a fence viewer as provided in section 359A.14. 29 5. Notwithstanding other provisions in the section to 30 the contrary, a fence viewer who may or does have a conflict 31 of interest in a matter that is part of the controversy may 32 participate in the matter, including by hearing and deciding 33 all questions related to the matter, if each party to the 34 controversy signs a waiver. The waiver shall state that the 35 -2- LSB 5534HV (2) 87 da/jh 2/ 7

H.F. 2340 party has been notified of the fence viewer’s conflict of 1 interest and agrees to the fence viewer’s participation in 2 the matter. The waiver shall be attached to the order issued 3 pursuant to section 359A.4. 4 Sec. 3. Section 359A.3, Code 2018, is amended to read as 5 follows: 6 359A.3 Powers of fence viewers Notice and hearing . 7 The fence viewers shall have power to determine any 8 controversy arising under this chapter , upon giving give five 9 days’ notice in writing to the opposite party or all parties , 10 prescribing to the controversy. The notice shall prescribe 11 the time and place of meeting to hear and determine the 12 matter named the hearing to decide any and all matters that 13 are part of the controversy as described in said the notice. 14 Upon request of any landowner, the fence viewers shall give 15 such the notice to all adjoining landowners liable for the 16 erection, maintenance, rebuilding, trimming, or cutting back, 17 or repairing of a partition fence, or to pay for an existing 18 hedge or fence. The notice must include the names of the fence 19 viewers and state whether a fence viewer disclosed a possible 20 conflict of interest or whether a substitute fence viewer was 21 appointed due to a fence viewer’s disqualification pursuant to 22 section 359A.2A. 23 Sec. 4. Section 359A.4, Code 2018, is amended to read as 24 follows: 25 359A.4 Decision Hearing —— decision —— order —— deposit. 26 1. At said the time and place described in section 359A.3, 27 the fence viewers shall meet to hear and determine by decide 28 any and all matters that are part of the controversy. The 29 fence viewers shall issue a written order that specifies the 30 obligations, rights, and duties of the respective parties in 31 such matter, and . 32 2. a. If the fence viewers determine the erection of a 33 fence may be unfeasible in any location which constitutes the 34 adjoining parties’ property boundary, the fence viewers shall 35 -3- LSB 5534HV (2) 87 da/jh 3/ 7

H.F. 2340 conduct a site evaluation. The fence viewers may request 1 assistance by the county engineer in the county where the 2 adjoining properties’ boundary is situated. The determination 3 may be based on any of the following: 4 (1) Topography. 5 (2) Terrain. 6 (3) Terraces. 7 (4) Land slope. 8 (5) Unstable ground. 9 (6) The presence of surface water, drainage systems, 10 sinkholes, or water wells. 11 (7) Easements. 12 (8) Utilities. 13 (9) Available area. 14 b. If the fence viewers determine the erection of a fence 15 is unfeasible as provided in the site evaluation, the fence 16 viewers shall assist the parties in reaching an agreement as 17 provided in sections 359A.12 and 359A.13. However, if the 18 parties cannot reach such agreement within sixty days after the 19 site evaluation is completed, the fence viewers shall order 20 the fence’s erection. The fence shall be erected as otherwise 21 provided in this section, except for any location identified 22 as unfeasible in the site evaluation. For that location, the 23 fence viewers shall order the fence to be erected at the most 24 feasible location on the property of the owner who initiated 25 the controversy that is closest to the adjoining owner’s 26 property boundary. 27 3. a. The order shall assign to each owner the part which 28 the owner shall erect, maintain, rebuild, trim or cut back, 29 or pay for, and fix the value thereof, and prescribe the time 30 within which the same shall be completed or paid for, and, in 31 case of repair, may specify the kind of repairs to be made. 32 b. If the fence is not erected, rebuilt, or repaired within 33 the time prescribed in the order, the fence viewers shall 34 require the complaining landowner to deposit with the fence 35 -4- LSB 5534HV (2) 87 da/jh 4/ 7

H.F. 2340 viewers a sum an amount of money sufficient to pay for the 1 erecting, rebuilding, trimming, cutting back or repairing such 2 fence together with the fees of the fence viewers and costs. 3 Such complaining landowner shall be reimbursed as soon as 4 the costs and fees assessed against the party in default are 5 collected as provided in section 359A.6 . 6 4. The order shall include the names of the fence viewers. 7 The order shall state whether a fence viewer disclosed a 8 possible conflict of interest, and whether a substitute fence 9 viewer was appointed due to a disqualification pursuant to 10 section 359A.2A. Any waiver of a conflict of interest signed 11 by a party shall be attached to the order. 12 EXPLANATION 13 The inclusion of this explanation does not constitute agreement with 14 the explanation’s substance by the members of the general assembly. 15 GENERAL. This bill amends provisions in Iowa’s fence law 16 (Code chapter 359A) that in part governs the construction 17 (erection) or maintenance of fences existing on the property 18 boundary between land of adjoining owners (sometimes referred 19 to as partition fences). A controversy between the owners may 20 result in an order being issued by the board of trustees of the 21 township where the property boundary is located, who assume the 22 title of fence viewers (Code sections 359A.3 through 359A.11 23 and Code section 359A.22). 24 BILL’S PROVISIONS —— CONFLICTS OF INTEREST. The bill 25 provides for a fence viewer who has a conflict of interest 26 involving any question related to the controversy: If the 27 fence viewer may have a conflict of interest, the fence viewer 28 must make disclosure of the possible conflict of interest to 29 the parties and other fence viewers. If the fence viewer 30 has an actual conflict of interest, the fence viewer must be 31 disqualified either at the fence viewer’s election or by vote 32 of the other trustees. Either action must be described in the 33 fence viewers’ notice to the parties and order. A conflict 34 of interest occurs when a fence viewer is asked to make a 35 -5- LSB 5534HV (2) 87 da/jh 5/ 7

H.F. 2340 determination that would affect a tract of land in which the 1 fence viewer or a person related to the fence viewer has an 2 ownership or leasehold interest. A person is related to a 3 fence viewer by being an immediate family member or a business 4 associate (e.g., a partner in the same general partnership). 5 If the trustee is disqualified, the remaining trustees (e.g., a 6 spouse) must appoint a substitute (unless the township clerk 7 selects a fence viewer in cases in which the adjoining property 8 is located in more than one township). The bill provides that 9 the fence viewer may participate in the matter if the parties 10 to the controversy are notified of the conflict and sign a 11 waiver. 12 BILL’S PROVISIONS —— ERECTION OF FENCES BASED ON A 13 DETERMINATION OF UNFEASIBILITY. The bill provides that the 14 fence viewers may determine that the erection of a fence on 15 the property boundary between the adjoining properties is 16 unfeasible pursuant to a site evaluation conducted by the fence 17 viewers. The determination may be based on a characteristic 18 of the land (e.g., land slope), the presence of water (e.g., 19 located in a floodplain), some prior right (e.g., an easement), 20 or a suitable area is unavailable. In that case, the trustees 21 must assist the parties in reaching an agreement or if that 22 fails take account of the land’s characteristics in the order. 23 The order shall require the fence be erected at a feasible 24 location on the property owned by the party who brings the 25 controversy and that is closest to the adjoining party’s 26 property boundary. 27 BACKGROUND. The owner of property has a right to erect a 28 fence on the property boundary between the owner’s property 29 and an adjacent owner (Code section 359A.16). A controversy 30 requiring participation by a township’s fence viewers 31 may be triggered by an owner demanding that the adjoining 32 owner or adjoining owners share in the costs of erecting, 33 maintaining, or repairing the fence. The fence viewers must 34 provide notice to each adjacent owner that they are parties 35 -6- LSB 5534HV (2) 87 da/jh 6/ 7

H.F. 2340 to the controversy. The fence viewers act as adjudicators, 1 by determining the obligations, rights, and duties of the 2 respective parties, including contributions (payments) which 3 must be set forth in an order and be assessed and collected as 4 ordinary taxes (Code section 359A.6). The order is subject 5 to appeal in district court (Code sections 359A.23 through 6 359A.25). 7 -7- LSB 5534HV (2) 87 da/jh 7/ 7