Legal Question in Real Estate Law in California
Can your neighbor prevent you from removing a fence that is falling apart? The fence between our homes is falling apart. We contacted our neighbor to ask if she would like to participate in getting a new fence. She has respond no, definitely not and I don't want any contractors on my property and I don't want you to remove the old fence. Can she do this? The current fence is being held up with steel posts that are not part of the original fence but put there to hold up the fence. The posts on our side of the fence to keep it from falling over. She has junk (literally) bracing her side of fence. If we put in a new fence, we do not want those steel posts. If we remove the steel posts the fence falls over. Can she keep us from removing the old fence and replacing it with a new fence on the same fence line. We have given up on her paying any costs. What can she demand we do or don't do? Help? I forgot to mention we have a dog and she does not so we realize we are obligated to keep our dog secured on our property. We chose to do this with a fence. How about requiring her to remove the junk that is leaning against the current fence if or when we replace the old one.
1 Answer from Attorneys
California's law regarding boundary fences is somewhat sketchy and somewhat primitive, having been written about 1872 when the Civil Code was created, and is based on the concept of an agrarian society where the main use of fences was to keep cattle in, if you raised cattle, or to keep cattle out, if you were growing crops. The statute is found at Civil Code section 841, and you may want to look it up on line. Also be aware that city and county ordinances and/or private CC&Rs;in various neighborhoods may have local impacts on rights and obligations.
In general, I'd say, the Civil Code sets up two contrasting situations: (1) where you choose not to "inclose" your property; and (2) where you do choose to "inclose" it. The definition of "inclose" has been determined by several appellate court decisions to mean your property is inclosed if some combination of fences, walls, buildings, hedges and the like surrounds 100% of it, making it cow-tight.
If your property is "inclosed," e.g., if you have it fenced so your dog can't get out, you have to pay 1/2 the cost of maintaining the boundary fence between the neighbor and you. If not, the neighbor pays the entire cost -- and vice-versa, That's about all the state law has to say about fences between neighbors. Pretty primitive, huh?
In addition, it's pretty well decided that maintenance and repair of a boundary fence that's truly on the property line, and where neither neighbor has completely "inclosed" his or her property, requires joint approval. Unless neighbor X and neighbor Y agree, nothing can be done (as to the boundary fence on the property line). You have a stalemate.
An alternative is to build a replacement fence on your own property -- even if it's only an inch or two. You get to call all the shots on design, construction, contractor -- and you have to pay for it yourself.
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