Legal Question in Real Estate Law in California

fence replacement

We want to replace a side fence ,which we had surveyed,termite, unstraight, and patch work to stay up(neighbor's work), partially on our property. Neighbor has been notified by registered my oyf our intent, we replace no cost, or they could go half. Letter was returned unclaimed, Unopened. My fence man is uneasy.I don't want it back to back due to rodents(new fence is vinyl, old is rotten wood.

Asked on 8/22/06, 6:49 pm

2 Answers from Attorneys

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

Re: fence replacement

I really don't know what to advise here. The law on neighbor responsibility for boundary fence maintenance is notably lacking in recent legislation or reliable, recent and on-point appellate decisions. Even the well-respected Miller & Starr treatise on California real property law doesn't say a word about fence maintenance.

What guidance we do have is Civil Code section 841, enacted in 1872 and not since amended, which reads:

Monuments and Fences. Coterminous owners are mutually bound equally to maintain:

"1. The boundaries and monuments between them;

2. The fences between them, unless one of them chooses to let his land lie without fencing; in which case if he afterwards incloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter."

This means that if your neighbors don't have a fence substantially encircling their property, they don't have to contribute to boundary fence maintenance. This maybe makes sense in an 1872 scenario, where the main purpose of a fence was to include, or exclude, livestock, it makes little sense in a 21st-Century urban setting.

Nevertheless, this is the law in California on this subject, and the few appellate cases basically deal with technical details of what constitutes an enclosure, what is fair compensation, etc.

So, silly as it may seem, you may have to pay the full cost if your neighbor isn't fenced on all sides.

Next assuming you decide to proceed at your own expense, with your own contractor. My advice is to avoid any confrontation. THere is a tricky and unresolved legal issue as to whether you have the right to remove an existing boundary fence by yourself. Your facts don't say who built it. Removal may be a trespass.

Finally, why do you have to write certified letters to a next-door neighbor? This hints ar a seroius breakdown in communications. That further hints ar bad blood and the likelihood of a lawsuit.

My advice is whatever you do, whatever the law, be sure you hold the moral high ground. This is a tough one!

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Answered on 8/22/06, 11:41 pm
Cynthia Beckwith Law Offices of Cynthia Beckwith

Re: fence replacement

I agree with everything that Bryan Whipple just said on the subject. I am only going to emphasize one thing he said, and add one thing more.

Regarding the unclaimed letter: Attorney Whipple is right. I represent owners in boundary line disputes. They are ugly, and they often start with miscommunication. Pick up the telephone and have a regular conversation with your neighbor.

In addition: You mention that you have had the property boundary lines surveyed. Once you get neighbor consent, make sure you put up the fence right on the boundary line. Otherwise, for example, if it's slightly on your side, five years down the road your neighbor can try to claim that he has acquired the strip of land by prescriptive easement.

Bottom line: Try to get your neighbor's consent to put up the fence on the property line, either by sharing cost or at your cost. If you do not get it, your only alternative is to put the fence up entirely on your property, in which case you can put up any fence you like as long as it complies with local ordinances.

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Answered on 8/23/06, 10:02 am

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