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Who Should Pay For A Boundary Fence?

Written by on Monday, 28 October 2013 2:10 pm
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"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.

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  About the author, Bob Hunt

7 comments

  • Comment Link adele Thursday, 13 March 2014 1:53 pm posted by adele

    Has anybody dealt with a neighbor that removed the original fence, then dug out his property such that the replacement supporting fenceposts now have to be entirely on my property - and substantially within my property since the neighbor dug out the downslope land creating a vertical drop. The posts he used were cut off at the top. Can I attach the new fence to these posts that now lie at the edge of my property but on his property?

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  • Comment Link incognito Sunday, 29 December 2013 11:52 pm posted by incognito

    The irony of my situation is that we do need a new fence. Where we live used to be a subdivision and our units face each other. The fence was never maintained and a self planting palm destroyed one section. We have gates that face the street and because of an overgrown tree our gates are messed up. Mine won't shut and theirs won't open. These trees and ivy planted when the development was new are what have destroyed fences/walls and gates around here! No HOA any longer either. Oh, and naturally the offending tree is on my property. Considering what they want to do they are charging me a very small amount, less than 50%. They did not ask me to remove the tree. A friend is taking it down for 500.00. Another friend is stepping in to pay all the costs and I will owe the friend. I have a dog and have grown used to a fenced yard. The thing is that I did ask the neighbor if she could wait for 6 months as the fence will not fall down. She cites the gate that won't open as keeping them in a fire trap! Yet became insulted when I said she could have it removed in the meantime! They come and go thru a door in the garage. I am diligently searching for work. I live in a poor county in California. This neighbor is supporting a boyfriend who has not had a job in 3 years! I have been surviving alone and on my own for over 20 years! So I found the whole manner of this issue insulting to me, and ruthless. I also have a leaking roof and a rapidly sediment filling water heater! So I can prove financial hardship I am certain. I even need food stamp help to get through this period. I do own my home outright, so I use income tax return to cover property taxes... I figure people might be curious.... So this neighbor has an excellent job and the full money to cover the project. They planned on me paying a small sum per month to them, a sum I do not have; yet they were not willing to wait 6 months. My friend thinks maybe they want to move! I hope so! But such is life! I am just grateful that people with legitimate struggles have something written into the law on their behalf.

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  • Comment Link Stan Sunday, 29 December 2013 11:06 pm posted by Stan

    Suggestion. Take pictures of the fence and have a fencing company check the fence and give you in writing the fence condition and expected life if maintained. I was told that our fencing was good for approx10 yrs and only 2-4 posts had to be replaced @ cost of $65/post shared by both neighbors. I also sent him a letter stating that I didn't want the fence replaced since the law only required keeping it in good condition. Long story short...he replaced at his cost. I have no problem going to court. I feel confident that he'll loose. I also believe he was pushing to get it done this yr due to the new law. Don't stress Small Claims. It's an easy and fast process and I feel the Court will probably look at your neighbor as a bully. Good luck.

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  • Comment Link Incognito Sunday, 29 December 2013 7:39 pm posted by Incognito

    This amendment comes as a huge relief. My neighbors just suddenly told me to comply with their demands or they will sue me! They have money at this time for the whole thing, which they decided and chose all before verbally telling me. They do not care that at this time I am lucky to work 20 hours a week, but yes they will sue me and force me into all kinds of stressful court issues. Now I have a leg to stand on! Also the old law gave ALL the law and leverage into the hands of the one neighbor. There was NOTHING to help people going through economic hard times!

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  • Comment Link Incognito Sunday, 29 December 2013 7:36 pm posted by Incognito

    This amendment comes as a huge relief. My neighbors just suddenly told me to comply with their demands or they will sue me! They have money at this time for the whole thing, which they decided and chose all before verbally telling me. They do not care that at this time I am lucky to work 20 hours a week, but yes they will sue me and force me into all kinds of stressful court issues. Now I have a leg to stand on!

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  • Comment Link Stan Thursday, 14 November 2013 12:31 pm posted by Stan

    Almost. The Bill didn't take into consideration when 1 owner wants to replace the fence when fence is in good condition and only needs some minor repairs (replacing 4x4s). It also doesn't cover situations when fence line is shared by 3 property owners and 1 owner replaces fence with unlike kind thereby causing 1 neighbor to have 2 different styles.

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  • Comment Link Chris Saturday, 02 November 2013 12:34 pm posted by Chris

    As many fences have a "front and back" I would think that the neighbor that gets the back side should not have to pay and, on new construction the burden should be the construction companies not the old neighbor.

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