Do you need to fix or repair a common fence between your property and your neighbor? Make sure you follow the new mandatory procedure.
The California Legislature, in its infinite wisdom, recently updated its law regarding "good neighbor" fences, that is, a common fence dividing two properties. The original law had been in place since the 1870s, and simply provided that both owners were mutually responsible for common fences. As a practical matter, if you paid to put up a fence, your neighbor was obligated to reimburse you for one half of the "reasonable cost" of that fence.
General Overview of the Law
The new law creates much more certainty with regard to neighbors' responsibilities regarding their common fence, and provided some guidance as to what situations might warrant not splitting the cost evenly. However, it also provided for a much more formal process and procedure for erecting a common fence and recovering your half of the cost. Failure to adhere to the letter of the new law could jeopardize your right to recover your half of the cost.
The "Equally Benefit" Presumption
In short, the new law states that there is a presumption that neighbors equally benefit from a common fence, and that the cost for building or fixing a common fence should be equally shared. It requires that a party intending to build or fix a common fence must first send a notice to their neighbor prior to doing any work. It also lays out the circumstances under which the presumption that both parties equally benefit (and therefore should pay equally) may be overcome.
You need to send a notice 30 days before work starts. Here's what NEEDS to be included:
You must advise your neighbor that, under California law, "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." You also must include a description of the problem with the fence; Your proposed solution for addressing the problem; The estimated costs for fixing the problem; Your proposal for how to split the costs; and Your proposal for the timeline for getting the problem fixed.
Situations where both neighbors do not equally benefit:
If the financial burden to one neighbor is "substantially disproportionate to the benefit conferred" by the fence; If the cost of the fence would be greater than the difference in the value of the property; If the financial burden on one neighbor would "impose an undue financial hardship" on that neighbor; (If this is the case, the neighbor with the financial hardship will need to give "reasonable proof" of their "financial circumstances.") The "reasonableness" of the cost particular project, including: If the costs of the project are "unnecessary or excessive." If the costs of the project are "the result of the landowner's personal aesthetic, architectural, or other preferences." And, of course, a catch-all by which the Court may consider other "equitable factors" appropriate for the specifics of any individual case.
What does THAT mean?
None of the above factors are particularly specific, and are simply guidelines. The Courts are given broad discretion to split the costs of a common fence in essentially any manner that they view as fair. In extreme circumstances, a Court could even order that one party must be responsible for the entirety of the fence project.
Practical First Steps
Ultimately, while the new process may be a little daunting and incredibly specific, there is nothing in the law that says that you and your neighbor cannot come to an agreement outside of this procedure. (Of course, it is always best to put any agreement in writing.) In most circumstances, friendly neighbors should be able to work out fence problems without the involvement of any lawyers or courts. In rare circumstances where there is something unique about your property, your neighbor won't agree to split the cost evenly, or you just don't get along with your neighbor, it may be in your interest to talk about the specifics of your situation and your options with a local attorney. (Just a reminder: initial consultations are always free here at The Law Office of Jason L. Eliaser!) The most practical first step is to simply talk to your neighbor about any fence problems you might have. Because good fences may make good neighbors, but good communication makes even better neighbors.
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