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Your Legal Corner - Client Alert Blog

Adjoining California Neighbors Equally Responsible for Shared Fences and Boundaries? Maybe Not

Written By: Melissa C. Marsh, Esq., California Attorney, October 2013 Add to Favorites
California Civil Code §841, enacted over 140 years ago, sets forth the obligations of adjoining neighbors to mutually share in the cost of maintaining boundary line monuments and fences. Effective January 1, 2014, Assembly Bill 1404 repeals and replaces California Civil Code §841 to bring California's antiquated fence law into the modern times.

Existing law enacted in 1872 requires a homeowner who fully encloses a property to refund a neighbor a just proportion of the value of a division fence has been repealed. The revised statute provides specific procedural requirements for an owner who intends to incur costs for a shared boundary fence to notify the adjoining owner of the estimated costs and other information.

Under the revised statute, a neighbor must now give each affected adjoining landowner a 30-day prior written notice of any intent to incur costs for the maintenance, repair, or replacement of a shared boundary fence. The notice of intent must include: (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 boundary fence; (3) the proposed solution for the problem; (4) the estimated construction, or maintenance, costs to be incurred; (5) the proposed cost sharing plan; and (6) the proposed timeline for the repairs/replacement.

If the neighbor objects to the proposal, the neighbor can overcome the presumption that the repair/maintenance of a shared boundary fence should be divided equally by demonstrating by "a preponderance of the evidence" that imposing equal responsibility for the shared fence's maintenance, repair, or replacement would be unjust.

To determine whether equal responsibility for the reasonable costs of said maintenance/repair/replacement of a shared fence would be unjust, the Court will consider the following factors:

  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 exceeds 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. Whether the particular construction or maintenance project proposed for the shared fence is, or appears to be, unnecessary, excessive, or the result of one landowner’s personal aesthetic, architectural, or other preferences; AND
  5. "Any other equitable factors appropriate to the circumstances."

Although this newly revised legislation seeks to reduce claims and lawsuits brought by and between adjoining neighbors, at first glance it appears it will have the opposite result. The old law was clear– adjoining landowners are equally responsible for the maintenance, repair and replacement of the fences between them. Under the new law, there appears to be a lot grey wiggle room.

Posted In: Real Estate Reporter 

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Disclaimer: The information presented on this web site was prepared by Melissa C. Marsh for general informational purposes only and does not constitute legal advice. The information provided in my articles and alerts should not be relied upon, or used as a substitute for professional legal advice from an attorney you retain to advise or represent you. Your use of this Internet site does not create an attorney- client relationship. Transmission of this article is not intended to create, and receipt of it does not constitute, an attorney-client relationship. All uses of the contents of this site, other than personal uses, are prohibited. You may print or email a copy of any information posted on this web site for your own personal, non-commercial, use, but you may not publish any of the articles or posts on this web site without the Express Written Permission of Melissa C. Marsh.

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Located in Los Angeles, California, the Law Office of Melissa C. Marsh handles business law and corporation law matters as a lawyer for clients throughout Los Angeles including Burbank, Sherman Oaks, Studio City, Valley Village, North Hollywood, Woodland Hills, Hollywood, West LA as well as Riverside County, San Fernando, Ventura County, and Santa Clarita. Attorney Melissa C. Marsh has considerable experience handling business matters both nationally and internationally. We routinely assist our clients with incorporation, forming a California corporation, forming a California llc, partnership, annual minutes, shareholder meetings, director meetings, getting a taxpayer ID number (EIN), buying a business, selling a business, commercial lease review, employee disputes, independent contractors, construction, and personal matters such as preparing a will, living trust, power of attorney, health care directive, and more.