Have you ever heard “Good fences make good neighbors?” Now, adjoining landowners are
statutorily equally responsible for shared fences and boundary fences pursuant
to California Civil Code Section 841 which took effect January 1, 2014. Adjoining or contiguous landowners are
now faced with a presumption that because they share an equal benefit of a
shared or boundary fence that they are equally responsible for the reasonable
costs of construction, maintenance, or necessary replacement of the
fence. Property
managers or rental property management companies whose clients’ properties are
affected by this new law must be mindful of the change and be aware of the
procedural requirements dictated by the state legislature.
Statutory Notice Requirements for Repairing or Replacing Fencing
Landowners, or property managers, who wish to replace an existing
common boundary fence, must give each affected adjoining landowner a 30-day
prior written notice of any intent to incur costs for a common or boundary
fence. For those who manage properties for clients here is
where you need to pay attention. The statutory ‘Notice of Intent’ must
including the following elements:
1) A notice of the presumption of equal
responsibility for the reasonable costs of construction, maintenance, or
necessary replacement of the fence;
2) A description of the nature of the problem
with the shared fence;
3) The proposed solution for the problem
fence;
4) The estimated construction or maintenance
costs to address the problem;
5) The proposed cost sharing approach; and
6) The proposed timeline for addressing the
problem fence.
On a personal note, along with the statutory notice I would include or attach a copy of the law and a reference to the
state website, and any other supporting documentation to help facilitate the
neighbors understanding that the law has changed. If they are initially
resistant I would also counsel them to review the law, the state website, and
any other resource material to help them understand their obligations.
Burden of Proof to Show Inability to Pay is on the Objecting
Landowner
A landowner who wishes to repair or replace a fence will have to
sue to enforce the statutory presumption if their neighbor objects.
Objecting landowners have a right to contest their new statutory obligations,
but the burden of proof is all on them. An objecting contiguous or
adjoining landowner has the burden to overcome the presumption described in the
new state law by adequately demonstrating to a court (which means a judge) by a
preponderance of the evidence (which means evidence that is slightly greater
than evidence against it) that imposing equal or shared responsibility on them
would be unjust. To determine whether equal or shared responsibility for
the reasonable costs of common or boundary fence repair or replacement would be
unjust, a court will consider the following evidence through testimony and
documents:
1) Whether the financial burden on the
objecting landowner is substantially disproportionate to the benefit conferred
upon the proponent landowner;
2) Whether the cost of the new fence would
exceed the difference in value of the (burdened owner’s) property before and
after it’s installation;
3) Whether the financial burden to the
objecting 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 the extent to which the costs
appear to be unnecessary, excessive, or the result of one landowners personal
aesthetic, architectural, or other preferences; and
5) Any other equitable factors appropriate
under the circumstances.
Many times the cost of the fencing divided by two or three parties
will be low enough to handle these cases in a small claims division of the
local superior court house. If the case is in small claims court
attorneys will not be involved so costs for this type of lawsuit will be
minimal. It is paramount that any property management personnel involved
with conversations with neighbors relating to these issues be memorializing all
conversations including taking notes and sending letters to the neighbors.
An accurate written record of all conversations will help preserve precisely
what occurred during the period negotiation between neighbors should something
end up in court.
You Need to be an Advocate Selling the New
Fence to the Neighbor
When the fencing around the perimeter of your property
fails and needs replacement, nine times out of ten cooperation of each neighbor
seemingly carries the day and allows for a smooth transaction and replacement
of the fence. However for those occasions when the neighbor objects and
does not want to pay or participate in the project please be mindful of the
above procedures so that you can help fully and faithfully through
these issues.
Prior Existing Law is Repealed
The new law does not apply to a city, county, political
subdivision, public body, or public agency. Prior existing law enacted in
1872 which required a landowner who fully enclosed a property to refund their
neighbor a just proportion of the value of a division fence is repealed due to
this new law.
SHELLY ROBERSON
Alain Pinel Realtors, Palo Alto, CA
23+ Years Experience - 600+ Closed Transactions
http://twitter.com/sroberson2
http://www.facebook.com/ShellyRobersonAPR
sroberson@apr.com
1-650-464-3797
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