More Reason to Love Thy Neighbor
Shared Fence & Boundary Responsibility
Neighbors, whether you love them or hate them, you have to get along with them. This statement is especially true for those of us who share fences with our neighbors.
According to California Civil Code §841, adjoining neighbors with properties contiguous with each other must equally share the responsibility of division fences. The law presumes that because adjoining landowners share an equal benefit from a fence which divides their properties, these owners should be equally responsible for the reasonable costs of construction, maintenance, or necessary replacement of the fence, unless otherwise agreed in writing. Under Civil Code §841, a landowner must provide each affected adjoining landowner a 30- day prior written notice of any intent to share costs of a division fence. This notice is also subject to many stringent requirements, including the requirement of conveying specific information to the adjoining neighbor.
Importantly, this rule applies only where the fence serves as a “division fence.” In other words, the fence must rest precisely on the boundary separating the two properties. If the fence is located entirely on the property of one owner, then it is not a “division fence,” and no mutual obligation of construction and maintenance applies. The mutual benefit which gives rise to a mutual obligation only exists where both neighbors share in the benefit of the fence, and in this instance where the fence sits solely on one property, no mutual benefit exists. However, once it is established that the fence is indeed a “division fence,” moving or altering the fence requires consent from the other neighbor.
When an adjacent owner wrongfully refuses to contribute to the costs of a division fence the other owner may take steps to compel payment by initiating judicial proceedings against the non-contributing owner.
Generally, courts look to many factors, including but not limited to the following four. First, whether the financial burden on one landowner is substantially disproportionate to the benefit. Second, whether the cost of the fence would exceed the difference in the value of the property before and after its installation. Third, whether the financial burden to one landlord imposes an undue financial hardship. Finally, courts look to the reasonableness of the maintenance. Questions regarding this subject should be directly addressed to an experienced attorney, who can more fully explore the facts of your specific circumstances and formulate the proper legal strategy for your situation.
