"Good fences make good neighbors" the New England poet told us (Robert Frost, The Mending Wall); but no one said who was pays for them. Fortunately, for Californians, the state legislature has spoken on the matter.
In August of this year Governor Brown signed Assembly Bill 1404 into law. The intent of that bill was "to clarify and modernize California's almost 150 year old neighborhood fence statute, maintaining the state's long tradition which holds that neighbors are presumed to gain mutual benefits from the construction and maintenance of a boundary fence between their properties, and as a result are generally equally responsible to contribute to the construction and maintenance of their shared fencing."
According to the bill's authors (The Assembly Judiciary Committee) "...in a society no longer dominated by agrarian pursuits, modernizing the statute to better reflect the contemporary benefits associated with neighborhood fences makes sense... The modernization of the statute in this bill will thus better recognize these contemporary mutual benefits by clarifying the rebuttable presumption that adjoining landowners share an equal benefit and an equal responsibility for the reasonable costs of construct and maintenance of any fence dividing properties."
Moreover, "...the bill appropriately takes into account that neighborhood fences are not always mutually beneficial, and that an adjoining landowner who clearly receives little or no benefit from a boundary fence should not be forced to subsidize an adjoining landowner's fence construction." [my emphasis]
Under the new law, "Where a landowner intends to incur costs for [such a fence], 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."
Suffice it to say that we are some distance from Robert Frost's day (I let my neighbor know beyond the hill; And on a day we meet to walk the line And set the wall between us once again.) If the adjoining neighbor objects, he must be able to present "a preponderance of the evidence" showing some or more of the following:
1. Whether the financial burden to one landowner is substantially disproportionate to the benefit conferred upon that landowner by the fence in question.
2. Whether the cost of the fence would exceed the difference in the value of the real property before and after its installation.
3. Whether the financial burden to one landowner would impose an undue financial hardship given that party's financial circumstances as demonstrated by reasonable proof.
4. The reasonableness of a particular construction or maintenance project including all of the following:
(a) The extent to which the costs of the project appear to be unnecessary or excessive
(b) The extent to which the costs of the project appear to be the result of the landowner's personal aesthetic, architectural, or other preferences.
5. And, if that's not enough, "Any other equitable factors appropriate to the circumstances."
As noted, until now, no modification has been made of Civil Code Section 841, California's shared-fence law, since it was enacted in 1872. In the Bill Analysis, Assembly staff noted that the last published case citing that law occurred in 1964. The staff report said, "Given the regularity with which fence repairs are likely made within the state, and the lack of reported cases brought on the issue, it appears as though many landowners attempt to resolve any fence dispute without seeking court involvement (or go to small claims court for reimbursement of costs.)."
Are things all better now? We shall see.