If someone asks you what a fence is, the image that springs to mind would probably involve posts and boards or pickets, barbed wire, or chain link. But you would have a definite image of a fence. So when a subscriber recently asked me the difference between a fence and a wall, my first reaction was that a fence is a fence—you just know it when you see it. That, however, doesn't really hold up in court.
The subscriber stated: “An issue that seems to come up frequently involves fences and walls. Fences are not covered property under the CP 00 10 except for certain named perils under the coverage extensions. Since neither is defined under the policy, there appears to be differences of opinion even within my company on what is covered and what is not. It would be nice if the form discussed both fences and walls.”
The ISO form is silent on what constitutes a fence and what makes it different from a wall. The property not covered section lists fences located outside of buildings as not covered. Retaining walls that are not part of a building are also listed as property not covered. However, no other walls are specified. Could what I would think of as a wall that is built around a garden, for example, be considered a fence and therefore be excluded?
Materials and Meanings
Since the terms are not defined, we look to their common, everyday meaning. According to Merriam-Webster Online, a fence is “a barrier intended to prevent escape or intrusion or to mark a boundary; especially such a barrier made of posts and wire or boards.” A wall is “1a: a high, thick masonry structure forming a long rampart or an enclosure chiefly for defense —often used in plural; b: a masonry fence around a garden, park or estate; c: a structure that serves to hold back pressure (as of water or sliding earth); 2: one of the sides of a room or building connecting floor and ceiling or foundation and roof; 3: the side of a footpath next to buildings.”
The difference, based on these definitions, is that walls appear to be considered masonry structures as opposed to fences, which are usually made of posts and wire or boards. The word “structure” is used in definition of a “wall” but not for “fence.” Thus, a wall can likely be differentiated from a fence in the materials used to construct it. Of course, it could be problematic that the definition of “wall” refers to a masonry fence.
Black's Law Dictionary says that a fence is a “hedge, structure or partition erected for the purpose of enclosing a piece of land, or to divide a piece of land into distinct portions, or to separate two contiguous estates. An enclosure about a field or other space, or about an object; especially an enclosing structure of wood, iron or other materials, intended to prevent intrusion from without or straying from within.”
A wall, on the other hand, according to Black's, is an “erection of stone, brick or other material, raised to some height, and intended for purposes of privacy, security or enclosure.”
Again, it may come down to the materials used in building the fence or wall that make it what it is. But both of these definitions state that “other materials” than those listed could be used in construction.
Privacy Fences
These definitions could be applied to this question from another FC&S subscriber submitted several years ago:
This loss involves a condominium complex that has a standard ISO commercial property policy. Due to Hurricane Andrew in 1992, the insured's wood privacy fences or walls sustained severe damage. The standard ISO forms contain an exclusion of fencing; however, it affords coverage for retaining walls that are permanently attached to the building.
Our question is: If the wood privacy fences or walls are permanently attached to the buildings and cannot be removed without severely damaging the structure, would they be covered under the standard ISO CP policy? It is our opinion that, since the wood fencing or “privacy wall” is permanently attached to the structure, the standard ISO policy must respond to this loss.
Actually, the wooden privacy fence falls under the property not covered section of the ISO Building and Personal Property Coverage form.
Given these definitions, and given that the privacy fence is attached to, and not a permanent part of, the building, it is difficult to argue for coverage. Further, the policy contemplates coverage for retaining walls that are part of the structure. The privacy fences are not retaining walls even if they could fit a loose definition of “wall.”
It is easy to see why the original reader and his colleagues have a difficult time differentiating between fences and walls for coverage purposes. The two terms are closely tied together. Yes, I would know a fence if I saw it—but my fence could quite conceivably be someone else's wall.
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