Legal Question in Real Estate Law in California

Without our consent, neighbor's contractor came onto our yard to replace posts on shared property fence. They busted our sprinkler pipe & dug huge holes in our yard then filled them with cement, taking away a chunk of our lawn. They also broke most of boards on our side, took off the rails & didn't put them back.

Before doing repairs, we contacted our insurance agent who said fence damage is only covered under homeowners policy if it's an act of nature. We also checked CC&Rs & spoke to HOA who said it was between us & the neighbors. Our neighbors said they didnít know the workers were going to alter our property & leave things in disrepair. We suggested they contact the contractor for reimbursement but they declined. So, we wrote a letter certified return receipt to the owner of the company. He spoke to his foreman & manager who claimed they got our authorization & all the of damages already existed. We didn't take pictures before the construction since we didn't know they'd be coming on our property and trashing it but we took lots afterwards. This happened in February. Is it too late for us to file a police report? What is the California law regarding the time frame in which you can report trespassing and vandalism to the police?

Asked on 7/25/10, 1:38 am

3 Answers from Attorneys

Carl Starrett Law Offices of Carl H. Starrett II

The police will tell you this is a "civil matter" and probably won't even come out. You should get an estimate for the repairs and tell the neighbors and the contractor that you will file a lawsuit if they do not take care of the damages.

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Answered on 7/25/10, 11:32 am

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Boundary fences are everywhere in California, and sooner or later all of them will require repair or replacement. It is virtually impossible to repair or replace a boundary fence without at some point or other "poking a hole: through the invisible plane of the boundary.

Not surprisingly, our courts have heard a lot of cases between neighbors regarding trespass, encroachment, cost-sharing obligations, fence design, and the like. One would think a substantial body of judge-made case law has developed, although the actual statutory law passed by the legislature is very scanty (see Civil Code sections 841 and 841.4 as perhaps the only examples of fence statutes).

Surprisingly, after more than an hour of searching, I did not find any California cases saying whether a neighbor working on both sides of the boundary to repair a boundary fence is exercising a right or committing a trespass. However, I believe it is a right, which can be implied by the duty to erect and maintain boundary fences in some circumstances under CC 841 and case law in other states. On the other hand, the right to enter to make repairs or to replace a boundary fence would be quite limited, and would not include the right to damage the neighbor's property in ways unconnected with legitimate fence needs.

Further, the police are busy with violent crime matters and so are the prosecutors, so your chances of them showing much interest in a bad fence repair job is pretty remote, whether or not a statute of limitations for criminal trespass has elapsed.

Therefore, I recommend treating this as a civil matter, and taking it to small-claims court. Get a paperback self-help law book on "how to prepare, file and win in California small claims" or the like, by Nolo Press or a similar publisher, read up on the process, then go after the neighbor and the contractor in the same suit.

In disputes between neighbors, I also recommend taking every possible opportunity to negotiate an out-of-court settlement. You might want to request a final discussion of settlement possibilities just before filing suit. I'd try to get a civil action filed within one year of the harm done. Allege trespass and negligence if you go to court.

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Answered on 7/25/10, 1:28 pm
Timothy McCormick Libris Solutions - Dispute Resolution Services

Mr. Whipple is again right, but provides so much detail you may not be able to follow it. The simple answer, is the police won't be interested, particularly without eye witnesses as to which worker to charge. And you really think they're going to charge an innocent fence worker, since that's the person who did the trespass, who was just following instructions? If you want to persue this, sue the contractor. As between you and your neighbor, you were obligated to pay for half the work on a boundary fence. So if they paid, be happy. Just demand the contractor fix the defective work. Even if you didn't approve the work being done, you had a boundary fence obligation to mutually maintain it with the neighbor. So don't fight about authorization, since with or without authorization the defective work and damage to your yard was not authorized and the contractor is responsible.

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Answered on 7/26/10, 10:20 am

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