Legal Question in Real Estate Law in California

Our side neighbors built a new house and wanted to put up a new fence since their side was unsightly and it was also getting old and unsteady. We paid to have a fence estimate with all of us present, but the neighbors were insisting on replacing the 8 ft fence (covered with vines on our side, so taller in effect) with a 5' nailed together cheap wood fence that would "match" the one at their back property line. They also raised the ground level 12-24 inches, so we insisted they should deal with the drainage issue. The neighbors denied raising the land and said they would just go ahead with their plans without us. We gave them $500 in goodwill. The fence was built just inside their property line. They ended up (without further discussion) building a retaining wall and a nicer taller fence. We planted non-invasive vines along it that are on our property that climb the fence. Now the neighbors are insisting we take off the five 1/4 inch metal staples and small nails off our side of the fence that support the new vines. What are the legalities of our vine? Can we have the support nails and can the vine touch the fence?


Asked on 11/15/12, 1:00 pm

1 Answer from Attorneys

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

First, let me say I sure hope you can get this worked out without rancor or a lawsuit. Bad enough to be in an on-going dispute with someone; worse if they live next door.

As to the legal implications: If the fence is not on the boundary, but is instead a short distance into the neighbors' property, e.g., six inches, and they built it at their sole or almost-sole expense, I'd think a court likely would hold that it is their fence, and that they can prevent you from attaching vine supports or allowing your vines to grow on it, which would be a technical trespass, although they'd never get more than nominal damages. It is also possible, although somewhat less likely, that a court would rule that, notwithstanding its location and the payment of all (or almost all) of the costs by the neighbor, it is indeed a boundary fence and you are entitled to use your side of it as your own.

I do not know of any cases directly on point. You might want to think about some kind of trellis or stakes-and-wire arrangement for your vines, keeping it on your side of the property line.

If there is a drainage problem this winter or in the future, that raises a different set of issues, and at that point you might want to contact a drainage engineer and/or lawyer to examine the situation and advise you whether it was cause by the neighbor's grading work.

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Answered on 11/15/12, 1:24 pm


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