DO I NEED TO APPLY FOR THE CONSTRUCTION PERMIT WHEN BUILDING A FENCE?

DO I NEED TO APPLY FOR THE CONSTRUCTION PERMIT WHEN BUILDING A FENCE?
Posted date: 23/10/2020

My house is located in an urban area. Now, I want to build a fence about a 2-meter high to separate my house from the neighbor's house. Am I allowed to build such a fence? Do I need to apply for the construction permit when building a fence? Looking forward to hearing from FDVN Law Firm soon. Thank you.

FDVN’s opinion:

[1]. Right to build the fence separating the immovable properties:

According to Article 176 of the Civil Code 2015 on the boundary markers separating immovable property:

1. An owner of adjoining immovable property may only erect boundary stakes and fences and build separating walls on the area covered by its land-use rights.

2. Adjoining land users may agree to the erection of boundary stakes and fences, the building of separating walls, and the planting of trees on the boundary for use as boundary markers between the immovable properties, and the boundary markers shall be under the multiple ownership of such persons.

Where a boundary marker is erected on the boundary by only one party with the consent of the owner of the adjoining immovable property, such boundary marker shall be multiple ownership property and the construction expenses shall be borne by the party having erected the marker, unless otherwise agreed. If the owner of the adjoining immoveable property does not give consent and has legitimate reason, the owner having erected the boundary stake or fence or built the separating wall must remove it.

Thus, property owners are allowed to build fences on the boundary to create a barrier between adjoining properties with the consent of the owner of adjoining properties. In case of building a fence without the consent of the owner of the adjacent real estate for legitimate reasons, the above fence must be removed.

 

[2]. Height of the fence

According to Article 43 of the Law on Housing 2014 stipulating the requirements on the development of housing of households and individuals in an urban area:

 “1. It is required to have lawful residential land use rights, have legitimate housing and the housing is renovated or rebuilt as prescribed in law on construction.

2. Any existing housing must be constructed or renovated in conformity with the specific planning for urban area construction and/or design. Any housing which is granted the License for construction must be built in conformity with the License for construction.

3. The construction of housing must connect to the technical infrastructure of residential areas and ensure the requirements relating to hygiene, environment, residential architecture and does not cause negative effects on other adjacent constructions.

Besides, it is stipulated in the national standard TCVN 9411: 2012 on Row Houses, about the design standards:

“6.4.6   Fence and gate

6.4.6.1   For townhouses, front fences shall be open, light, aesthetic, and uniform architectural according to regulations of each area and shall meet the following requirements:

a)  The fence is not allowed to be built beyond the boundary including the foundation and has a maximum height of 2.6 m;

b)  In case the front of the house is 2.4 m far from the red-line boundary or the lane/alley, only open fences or shrub fences are allowed to be built;

c)  In case the front of the house is less than 2.4 m from the red-line boundary, the lane/alley boundary is less than 2.4 m, only light fences, with a height not exceeding 1.2 m or building flower beds are allowed to be the separate boundary;

d)  Where there are special requirements for safety, the fence whose maximum height is 1.8 shall be covered with light material.

e)  Separating boundary between two houses must have a clear fence equal to the front fence. The fences can be built with a maximum height of 0.6 m.”

So the fence of your house shall be open, light, aesthetic, and uniform architectural according to regulations of each area and shall meet the aforementioned requirements.

 

[3]. Apply for the construction permit when building a fence

According to Clause 2, Article 89 of the Construction Law 2014, works exempted from construction permit include:

“a/ Works involving state secrets, works constructed under emergency orders and works located in the territories of two or more provincial-level administrative units;

b/ Works of construction investment projects in which investment is decided by the Prime Minister, ministers, heads of ministerial-level agencies or chairpersons of People’s Committees at different levels;

c/ Makeshift construction works to serve the construction of main works;

d/ Works constructed in lines outside urban areas which conform to construction master plans approved by competent state agencies or in lines of which the direction has been approved by competent state agencies;

dd/ Construction works of projects on industrial parks, export processing zones, or hi-tech parks with detailed 1:500-scale plans already approved by competent state agencies and construction designs already appraised in accordance with this Law;

e/ Houses of urban development projects or housing development projects with under 7 stories and a total floor area of under 500 m2 and detailed 1:500-scale plans already approved by competent state agencies;

g/ Works undergoing repair, renovation or installation of interior equipment which does not alter their force-bearing structure and utilities and affect the environment and safety of these works;

h/ Works undergoing repair and renovation to alter their external architecture not facing roads in urban centers subject to architecture management requirements;

i/ Technical infrastructure works in rural areas for which only construction investment economic-technical reports are required and in areas without approved detailed construction plans on rural residential points;

k/ Construction works in rural areas without approved urban development plans and detailed construction plans; separate houses in rural areas, except separate houses built in conservation zones or historical and cultural relic zones;

l/ Project owners of works exempted from construction permit prescribed at Points b, d, dd, and i of this Clause shall send written notices of the time of construction commencement enclosed with construction design dossiers to local construction management agencies for monitoring and filing.”

It can be clearly understood from the above regulations and the information provided by you that you have to apply for the construction permit for the fence built by your family which will be granted by the competent authority because the fence does not fall into the works exempted from construction permit.

Hence, you have to ask the competent authority to grant the construction permit for the fence according to Point a, Clause 3, Article 89 of Law on Construction 2014. To determine the authority competent to grant the construction permit, you should rely on the provisions of the Decision of the Provincial People's Committee on the decentralization of the authority to grant construction permits in the province where you built the fence.

Legal Advisor: Nguyen Thi Suong

FDVN Law Firm


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