New Fence Law 2014

[mpallamary]

An associate just brought to my attention a radical revision to the common fence laws in California, adopted on January 1, 2014. Be careful!

CIVIL CODE

841. (a) Adjoining landowners shall share equally in the
responsibility for maintaining the boundaries and monuments between
them.
(b) (1) Adjoining landowners are presumed to share an equal
benefit from any fence dividing their properties and, unless
otherwise agreed to by the parties in a written agreement, shall be
presumed to be equally responsible for the reasonable costs of
construction, maintenance, or necessary replacement of the fence.
(2) Where a landowner intends to incur costs for a fence described
in paragraph (1), the landowner shall give 30 days' prior written
notice to each affected adjoining landowner. The notice shall include
notification of the presumption of equal responsibility for the
reasonable costs of construction, maintenance, or necessary
replacement of the fence. The notice shall include a description of
the nature of the problem facing the shared fence, the proposed
solution for addressing the problem, the estimated construction or
maintenance costs involved to address the problem, the proposed cost
sharing approach, and the proposed timeline for getting the problem
addressed.
(3) The presumption in paragraph (1) may be overcome by a
preponderance of the evidence demonstrating that imposing equal
responsibility for the reasonable costs of construction, maintenance,
or necessary replacement of the fence would be unjust. In
determining whether equal responsibility for the reasonable costs
would be unjust, the court shall consider all of the following:
(A) Whether the financial burden to one landowner is substantially
disproportionate to the benefit conferred upon that landowner by the
fence in question.
(B) Whether the cost of the fence would exceed the difference in
the value of the real property before and after its installation.
(C) Whether the financial burden to one landowner would impose an
undue financial hardship given that party's financial circumstances
as demonstrated by reasonable proof.
(D) The reasonableness of a particular construction or maintenance
project, including all of the following:
(i) The extent to which the costs of the project appear to be
unnecessary or excessive.
(ii) The extent to which the costs of the project appear to be the
result of the landowner's personal aesthetic, architectural, or
other preferences.
(E) Any other equitable factors appropriate under the
circumstances.
(4) Where a party rebuts the presumption in paragraph (1) by a
preponderance of the evidence, the court shall, in its discretion,
consistent with the party's circumstances, order either a
contribution of less than an equal share for the costs of
construction, maintenance, or necessary replacement of the fence, or
order no contribution.
(c) For the purposes of this section, the following terms have the
following meanings:
(1) "Landowner" means a private person or entity that lawfully
holds any possessory interest in real property, and does not include
a city, county, city and county, district, public corporation, or
other political subdivision, public body, or public agency.
(2) "Adjoining" means contiguous to or in contact with.

[Lee Hixson]

"(3) The presumption in paragraph (1) may be overcome...."

So if you don't agree with your neighbor, going to court is the only option? Attorneys have to love this one.

[mpallamary]

Lee, my wife asked me what that part meant I told her it was the litigation assurance provision. Coincidentally, we are in the process of putting a new fence up and I just wrapped up the notification letters for all my neighbors. It will be interesting to see how that goes!

[LS 4722]

Another stupid law that makes a person who really wants to go next door, walk not only around the block, but through each floor and hallway of city hall.

[Dave Karoly, PLS]

I need to replace my back fence (2 neighbors).

What is to stop me and my neighbors from just buying the materials and doing it ourselves? Nothing, I say. This only comes into play if there is a dispute. I estimated the cost at $900 total for materials (redwood). That's 450 for me and 225 for each neighbor. I guess if they don't want to pay I would have to take them to small claims court but prove I followed the notice provisions in the statute. One half is worse than the other. The neighbor with the better half could say it's not needed. So on and so forth.

I would think the statute is more applicable where we are talking serious dollars such as commercial property or miles of wire fence on a ranch.

[mpallamary]

No matter what the intent, it is the law and that just kills me. In my case, I am sending a letter to all my neighbors and letting them know that I will be sending a second letter outlining everything. It is a problem and a litigation catalyst and I do not believe many people are aware it is even out there. Land of the free and home of the brave......

[dewardkb]

I don't know it seems to me that this is just an attempt to codify common law.

I am not seeing anything here that is not already a result of case law and I actually think this law would reduce litigation (or is an attempt to reduce litigation).

As a land owner you have an obligation to maintain your property. If there is a fence at or near the boundary that has become ruinous then you are obligated to share proportionally with your neighbor for it's repair it or removal, simple as that.

It contains caveats for equity regarding the repairs, removal or replacement.

I understand the resistance toward something that seems so obvious but being forced to maintain your property by code is no different than being forced to maintain it by the court....except the lawyer and litigation part.

[mpallamary]

It is not that simple and I have seen why. I was involved in litigation several years ago on this and a road matter. One guy wanted a fence that cost $150 a foot while the other wanted one that cost $30 a foot. That is the problem. The guy installed the $150 a foot fence around his castle and then sued the neighbor to pay half of it. It is in fact a HUGE problem, sadly.

[dewardkb]

Mr. Pallamary do you think this was a result of the law because I see these same lawsuits here in Texas and we have no such law?

[mpallamary]

Absolutely yes! Someone was being forced to pay for his/her neighbor's million dollar fence surrounding his/her spectacular pool. The other side was probably hidden behind some trees at the bottom of a hill where a chain link fence would have been fine. I see this problem a lot. It happens also with private roadways subject to a private road maintenance agreement. The guy up from wants Gucci and the one in the end JC Penny. I have been involved in that litigation also. The common property owners are bound to an agreement. One wants asphalt and the other paved concrete.

[E_Page]

I agree with Deward on this. The $150 vs $30 per foot lawsuit obviously occurred under the old law which did not have the presumprions and the circumstances for overcoming the presumptions spelled out.

I've always interpreted the old law as where a fence was being replaced, the coterminous owners were each responsible for the cost of replacing it with a fence of similar material and construction, and if one owner wanter to replace it with something substantially more expensive, the added cost was on that owner alone.

Perhaps attorneys love provisions like #3, but as Deward said, it's really no different than what the common law would have already held.

The added provision that seems overbearing is the required notices. it seems to preclude the over-the-fence handshake as a valid agreement to replace the fence.

[RAM]

interesting discussion that is relative to where you live. For the most part, not an issue here where mostly wide open spaces and most fences are for control of the livestock, therefore treated as the responsibility of the owner of the livestock. Most locals prefer not to fence.

[land butcher]

I agree with Mike. We have so many laws now that I know that at any time I am probably breaking one so I just don't worry about it. I know enough obscure laws that I can embarrass any judge that says it's my responsibility to know the law.
Every new law removes a right from someone else.

Many tracts the exterior boundary walls/fences are built on the property not on the PL. Even though the adjoiner enjoys the privacy of the wall/fence it's not on PL or his property so replacement or maintenance is not his responsibility.
The block wall on my back line, also 2 adjoiners, was built on their side of the PL, a redwood fence was on the BL PL which I tore down decades ago, I have almost 1 ft of "extra" land there.
The new 100 ft block wall on one side (160 ft side line), requested and contractor hired by my neighbor, was supposed to be on the PL I checked the builders string lines. When the wall was finished and I went to replace the back corner on the top of the wall the contractor had moved the back end totally on my property. I didn't do a location but all building to wall msmts indicate the front of the wall is on PL. Cute.
My son was looking for a house some years ago and we are looking at what was a complete tear down. As we are leaving the neighbor comes over, a construction super I knew, and is informing the realtor that the wall on one side is his and if the new owners touch it they need to pay him half of the cost of the wall. The new owners tore down the dump and built a mansion and planted a hedge along that PL.
As I left I asked him if he had the PLs in when he built the wall. No answer. It had pilasters and fancy oversize caps. I would have loved to tell him 1 inch of that wall was on my property.

[David Kendall]

Has anyone heard of this law being used to
share survey costs to establish the line which needs fence replacement?