Mending Fences: Your Rights and Responsibilities


Mending Fences: Your Rights and Responsibilities

Having or building a fence on your property may seem like a simple matter. After all, it’s your property, right? Oddly enough, something as simple as a boundary fence can cause all manner of legal headaches for you and your neighbors.

As with any potential problem in life, taking steps to prevent the situation is often much easier than fixing it later. If you’re purchasing a house that has an existing fence, verify the property’s boundaries. One situation we often see is a boundary fence which was accidentally built on the neighbor’s property. The current neighbors may not know or care, but if new neighbors move in later and discover your fence encroaches on their property, you could end up in a heated property dispute over, for example, two feet of land. It’s much easier to investigate these matters before ever purchasing the home.

The same idea applies if you’re planning to build a fence. The safest approach is to engage a licensed surveyor to survey your property lines. Aside from fence placement, there are several other issues to consider before investing in your new project. Most cities have ordinances which dictate the height of your fence, for example. It’s best to check local laws before hiring a contractor to do work which might cause a dispute with your neighbors. Also keep in mind that in many subdivisions have CC&Rs which contain provisions which govern fences.

Occasionally, cities do grant one-time exemption to fence laws. Called a variance, this exception allows you to build a higher fence in special situations. It may be best to notify your neighbors that you’ll be requesting a variance, so that they don’t object to the fence later and cause you more trouble.

If you’re the neighbor who has a complaint about a fence, the best course of action is to first talk to your neighbor. He or she may have no idea their fence violates regulations. If the neighbor won’t work with you on a solution, you can notify your city’s zoning department. An obvious violation will probably result in a fine or an order to modify the fence so that it meets standards.

Additionally a new California law went into effect on January 1, 2014, specifically dealing with adjoining homeowners and boundary fences. They now must share equally the responsibility for maintaining boundaries and monuments between them, since they are presumed to get equal benefit from a fence dividing their properties, unless they agree otherwise in writing. Thus adjacent homeowners are presumed to share 50-50 in the reasonable costs of construction, maintenance, or replacement of the fence when necessary. A homeowner must give any affected adjacent homeowner a 30-day written notice of any intent to incur costs for a boundary fence before any work is begun. The notice must include: (1) notification of the presumption of equal responsibility for the reasonable costs of construction, maintenance, or necessary replacement of the fence; (2) a description of the what is wrong with the existing shared fence; (3) the proposed “fix”; (4) the estimated cost to build or maintain whatever is proposed to accomplish the “fix”; (5) the proposal for sharing the costs; and (6) the proposed timeline going forward. An adjoining landowner can defeat the request for shared costs by showing, by a preponderance of the evidence, that an equal sharing of costs would be unjust. If the dispute goes to court over whether equal sharing of costs would be unjust (which itself will cost a considerable amount of money!) a court will consider the following factors: (1) whether the financial burden on one landowner is substantially disproportionate to the benefit conferred upon that landowner by the fence; (2) whether the cost of the fence would exceed the difference in the value of the 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) 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 landowner’s personal aesthetic, architectural, or other preferences; and (5) any other equitable factors appropriate under the circumstances. There are some exemptions to this new law where there already local laws in existence regarding the obligation to refund a division fence.

In complicated situations, such as property disputes, it’s best to consult with a real estate lawyer if you have questions of how to proceed.




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