Fence laws in Delaware
What Delaware statutes and statewide codes say about fences, one topic at a time, with the section number and a link to the document behind every line.
Fence laws in Delaware, question by question
The short version
- Who pays on the line
- Delaware splits a partition fence in equal shares between the people on either side, for as long as both of them keep their land in use.
- How tall
- Delaware sets no maximum fence height. The chapters that were read are listed below. Cities and counties decide this one.
- Permits
- Delaware leaves the fence permit rule to building codes adopted by the three counties and by municipalities.
- Pool barriers
- Delaware rings every outdoor public pool with a fence at least four feet high at every point, measured from the ground outside the fence, and the rule names six feet as the height it prefers. The figure is 48 inches, for fence around an outdoor public pool. It reaches public and semipublic pools only.
- Spite fences
- Delaware has no spite fence statute. The chapters that were read are listed below. Cities and counties decide this one.
- Measured from what
- Delaware leaves the measuring rule to the legislative body of each city and incorporated town.
- Corner lots
- Delaware has no corner triangle rule. The figure is 10 feet, for width of the clear zone measured out from the pavement edge on roads other than interior subdivision streets. It reaches rights of way the Department of Transportation controls outside cities and towns only.
- Retaining walls
- Delaware leaves retaining walls to Kent County, New Castle County and Sussex County, and the municipalities inside them.
- Materials
- Delaware bans barbed wire, razor wire and anything like them in a residential district unless the county or town zoning board, or its board of adjustment, approves it first. It reaches residential districts only.
- Livestock
- Delaware sets the lawful fence height by county. The figure is 54 inches, for lawful fence in New Castle and Kent counties.
Who owns the fence between two properties in Delaware?
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Delaware answers this in its own law. The words that do it are quoted below.
Delaware splits a partition fence in equal shares between the people on either side, for as long as both of them keep their land in use. Where somebody fences land next to land that is already fenced, so part of the standing fence becomes the shared line, the fence viewers set what one side pays the other. After that payment both sides keep the fence up equally.
The respective occupants of lands enclosed by fences shall maintain partition fences between them in equal shares, as long as both parties continue to improve the same.
Also on fences on the property line in Delaware
- set in state lawThe rest of the same section covers the neighbor who fenced first. When new fencing turns a standing fence into a shared line fence, the fence viewers decide what the later owner pays toward the fence already built. 25 Del. C. 1304(b)Delaware · Statute
- set in state lawDelaware still settles fence fights through fence viewers. The Superior Court picks five to eight of them in each hundred every year, a hundred being an old Delaware land division still used for this. They decide whether a fence is good enough, what building or fixing it costs, how that cost is split, and what damage trespassing animals did. Any three of them may act, and a majority of those three decides. 25 Del. C. 1303Delaware · Statute
- set in state lawWhen the fence viewers call a fence not good enough, they tell the person who has to keep it up. Five days of doing nothing after that notice lets a justice of the peace send the other side in to do the work, and the side that did the work gets back double what the neglecting party owed. 25 Del. C. 1305Delaware · Statute
How tall can a fence be in Delaware?
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Delaware law has no rule about this. The chapters that were read are listed below. Cities and counties decide it instead.
Delaware sets no statewide limit on how tall a fence at a house can be. The heights in the fence chapter are floors that define a lawful fence for holding livestock, not a cap on a yard fence, and the chapter on construction codes hands the whole subject to the counties. Height is a local zoning question in Delaware.
Documents read before writing that:
- 25 Del. C. ch. 13Delaware General Assembly
- 16 Del. C. ch. 76Delaware General Assembly
Do I need a permit for a fence in Delaware?
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Delaware does not set this. It leaves it to building codes adopted by the three counties and by municipalities.
Delaware has no state building code. The statute lets the Levy Court of Kent County and the county councils of New Castle and Sussex adopt building codes of their own, enforce them and charge fees for the enforcing. A separate section ties county and town codes to the International Energy Conservation Code for energy, and nothing else in state law sets a building standard. So whether a fence needs a permit is a county or town question, and the answer is not printed anywhere in the Delaware Code.
The Levy Court of Kent County and the County Councils of New Castle County and Sussex County may adopt and enforce building codes, plumbing codes, electrical codes or other similar codes.
The code hands this to building codes adopted by the three counties and by municipalities, which is not published in the code itself.
Pool fence requirements in Delaware
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Delaware answers this in its own law. The words that do it are quoted below.
Delaware rings every outdoor public pool with a fence at least four feet high at every point, measured from the ground outside the fence, and the rule names six feet as the height it prefers. The gate has to lock, and has to be locked when the pool is closed. A fence here means an unbroken upright barrier with openings no more than four inches across. This covers public and semi public pools, not a pool at a private home.
All outdoor pools shall be enclosed by a fence which provides a barrier that is at least four (4) feet high everywhere
16 Del. Admin. C. 4464, 9.12.2
48 infence around an outdoor public pool
Spite fence laws in Delaware
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Delaware law has no rule about this. The chapters that were read are listed below. Cities and counties decide it instead.
Delaware has no spite fence law. The fence chapter in the property title says nothing about a fence built to annoy a neighbor. The criminal nuisance section reaches only conduct that puts health or safety at risk, or a place kept for unlawful conduct. Neither one sets a height at which a fence becomes a nuisance.
Documents read before writing that:
- 25 Del. C. ch. 13Delaware General Assembly
- 11 Del. C. 1322Delaware General Assembly
How fence height is measured in Delaware
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Delaware does not set this. It leaves it to the legislative body of each city and incorporated town.
Delaware never says where a fence height starts. The farm fence law makes four and one half feet a lawful fence in New Castle and Kent counties and four feet in Sussex, with nothing said about dirt, finished yard or the low side of a bank. For a yard fence the answer moves to the town. Section 301 of title 22 lets the city or town council set the height of buildings and other structures, so the town writes the number and picks the surface it is measured from.
the legislative body of cities and incorporated towns may regulate and restrict the height, number of stories and size of buildings and other structures, percentage of lot that may be occupied
The code hands this to the legislative body of each city and incorporated town, which is not published in the code itself.
Fence rules for corner lots in Delaware
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Delaware answers this in its own law. The words that do it are quoted below.
Delaware has no corner triangle rule. What it has instead is a clear strip along its roads. Title 17, section 525 lets the Department of Transportation keep clear zones in the rights of way it controls outside cities and towns, and pull out anything man made left in them. The clear zone runs ten feet out from the edge of the pavement on most roads, and less on streets inside a housing subdivision. It is a band along the pavement, not a wedge at an intersection, and it covers public ground rather than a private yard.
The Department is authorized to maintain clear zones within the rights-of-way under its jurisdiction in the unincorporated areas of the State. In maintaining these clear zones, the Department shall have the immediate authority to remove artificial obstructions placed therein, including, but not limited to, nonofficial signs, poles, mailboxes not placed in conformance with Departmental regulation, or other hazards to safe passage.
10 ftwidth of the clear zone measured out from the pavement edge on roads other than interior subdivision streets
Retaining wall rules in Delaware
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Delaware does not set this. It leaves it to Kent County, New Castle County and Sussex County, and the municipalities inside them.
Delaware has no state building code. Title 16, section 7601 says the three counties may adopt and enforce building codes, and the word is may, so even having a code is a county choice. The one thing state law does set is a floor for energy rules, tied to the International Energy Conservation Code. Nothing in the chapter sets a height for a wall that holds back earth or says how one has to be built. That answer comes from the county or town code that covers the property.
The Levy Court of Kent County and the County Councils of New Castle County and Sussex County may adopt and enforce building codes, plumbing codes, electrical codes or other similar codes.
The code hands this to Kent County, New Castle County and Sussex County, and the municipalities inside them, which is not published in the code itself.
Fence materials allowed in Delaware
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Delaware answers this in its own law. The words that do it are quoted below.
Delaware bans barbed wire, razor wire and anything like them in a residential district unless the county or town zoning board, or its board of adjustment, approves it first. Land used for farming or for schooling is outside the ban. This is a statewide rule, and it sits in the property law rather than in a zoning code, which is where most states put it.
No fence of any kind which is composed in whole or in part of, or to which there is or has been added, barbed wire, razor wire or any barbed wire type of fencing material shall be permitted in any residential district without prior approval of the county or municipal zoning board or its board of adjustment
Also on materials in Delaware
- set in state lawAnother sentence in the same section covers the fence on the line between two properties. Barbed wire there takes the agreement of both owners, in any zoning district. 25 Del. C. 1301Delaware · Statute
Livestock and boundary fence law in Delaware
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Delaware answers this in its own law. The words that do it are quoted below.
Delaware sets the lawful fence height by county. In New Castle and Kent it is four and one half feet, or four feet with a ditch within two feet of it. In Sussex it is four feet. The numbers are there to hold livestock, and whether a fence is lawful decides who pays when an animal gets out.
shall be deemed a lawful fence in New Castle and Kent Counties, and in Sussex County 4 feet shall be the height of lawful fences.
54 inlawful fence in New Castle and Kent counties
Also on agricultural fencing in Delaware
- set in state lawLand ringed by a lawful fence is protected land in Delaware. The owner of a horse, cow, goat, sheep or hog that gets in pays whatever the fence viewers award. An animal already known to break through lawful fences costs its owner double, once notice has been given. 25 Del. C. 1302Delaware · Statute
Documents behind this page
6 documents, each read on the date shown. Nothing on this page rests on a summary of one.
- Delaware General AssemblyDelaware Code, Title 25, Chapter 13, Section 1304
- Delaware General AssemblyDelaware Code, Title 16, Chapter 76, County or Municipal Building, Plumbing, Electrical and Other Codes
- Delaware Department of Health and Social Services, Division of Public HealthDelaware Administrative Code, Title 16, 4464 Public Swimming Pools
- Delaware General AssemblyDelaware Code, Title 11, Chapter 5, Subchapter VII, Offenses Against Public Health, Order and Decency
- Delaware General AssemblyDelaware Code, Title 22, Chapter 3, Municipal Zoning Regulations, Section 301, Grant of power
- Delaware General AssemblyDelaware Code, Title 17, Chapter 5, Section 525, Maintenance of clear zones within rights-of-way
What this page does not cover
Everything above is state law. Fence height, setback, corner visibility and materials are set by city and county ordinance in almost every state, and a local rule can be far stricter than the statewide default. A parcel can also carry an easement, an overlay district, a fire hazard zone or a recorded HOA restriction, none of which appear in a statute.
This is general information drawn from published government documents. It is not legal advice, statutes are amended, and the date beside each finding is the date the document was read. How findings are made · What the terms mean