Developments of Interest

Well-Maintained Fences May Make For Good Neighbors But Not Without Advance Written Notice

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03/03/2014

Some 140 years ago, the California Legislature enacted California Civil Code section 841, which deals with the mutual duty of neighbors whose properties border each other to equally maintain boundaries, monuments, and fences which run along their common borders.  That section, which has remained unchanged until this year, was a mere 61 words in length

As of January 1, 2014, however, amendments to Civil Code section 841 have expanded this formerly succinct provision to a full, single-spaced page of text.  (Former section 841 and Amended section 841 are set forth in full below.)  The changes include a provision that requires a landowner to give a detailed written notice to each affected adjoining landowner 30 days before incurring any costs for the “construction, maintenance, or necessary replacement” of a shared fence.  Section 841(b)(2) states that the notice must include all of the following:  “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.”

The California Legislature has entitled its handiwork the “Good Neighbor Fence Act of 2013.”  Whether these amendments will make for “good neighbors” remains to be seen.  The new notice requirements are, however, a potential trap for a property owner who, with good intentions but unaware of the change in the law, takes steps to repair a fence that may be falling over without talking to his or her neighbors in advance.  Moreover, the revisions to Civil Code §841 are silent on what the consequences may be should a landowner fail to provide the required advance notice.

The California Legislature’s intent seems to be to encourage communication among adjoining landowners before one landowner unilaterally takes steps, without conferring with other affected landowners, to construct, maintain, or replace a boundary line fence.  The amendments to Civil Code section 841 also include provisions for rebutting the statutory presumption that adjoining neighbors have equal responsibility for the reasonable costs of construction, maintenance, or necessary replacement of such a fence. The Legislature’s goals here may be laudable, but it’s far from clear whether these amendments will succeed in achieving those goals.

How these considerable changes will play out in practice is anyone’s guess at this time.   Regardless of what the answer to that question may turn out to be, however, one thing is certain:  30 days’ advance written notice is now the law in California when it comes to working on boundary line fences.

If you have any questions about how this change in the law might affect you, Gagen McCoy would be pleased to be of assistance.

 

 

California Civil Code §841
Before Amendment

§841. Boundaries, monuments and fences; maintenance.

            Coterminous owners are mutually bound equally to maintain:

            1.         The boundaries and monuments between them;

            2.         The fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he afterwards incloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter. Leg.H. 1872.

 

 

California Civil Code §841
After Amendment Effective January 1, 2014

§841. Boundaries and Monuments; Presumption of Equal Benefit From and Responsibility for Fences; Required Notice to Adjoining Landowner of Costs for Fence; Factors Overcoming Presumption; Definitions.

            (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.  Leg.H. 2013 ch. 86 (AB 1404) §3.

            2013 Note:  This act shall be known, and may be cited, as the Good Neighbor Fence Act of 2013.  Stats. 2013 ch. 86 (AB 1404) §1.

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