Mending Fences Can Be Complicated: What Happens When Neighbors Disagree?
Homeowners build fences for a variety of reasons. Perhaps they want a contained space for children to play in, to keep dogs from roaming, or to create more privacy in the yard. In some instances fences are required. For example, many municipalities require a safe fence and gate around pools.
In most instances homeowners take care to choose attractive fencing that suits their home’s architectural style and the neighborhood. They work with their neighbor to install and maintain the fence between their respective properties.
Unfortunately, some neighbors disregard common association rules or local ordinances when installing or maintaining the common fence. Some neighbors ignore a commonly shared fence that is unsightly or poorly maintained. If this happens with your shared fence, what rights do you have?
If you belong to a homeowners association, the rules and regulations of the association likely set forth standards regarding fence height, style, and other considerations. In this case, the association board should be a homeowner’s “first stop” when addressing a conflict or complaint. If your property is not in an association-regulated neighborhood, your first step should be to reach out to your neighbor to try and come up with a solution to repair the commonly shared fence.
So now the fence needs to be repaired, but who pays for the repair? California Civil Codes Section 841 states that 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. While the law may provide a solution, a neighbor may refuse to pay or be unable to pay for the fence. In order to benefit from the law, if you plan on incurring costs to repair or replace a commonly shared fence, you must give any affected adjoining neighbor at least 30 days’ prior written notice. The notice shall include that the neighbor is equally responsible for the reasonable costs of construction, maintenance, or necessary replacement of the fence, 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.
If your neighbor refuses to cooperate, don’t take that refusal as a reason to install an unattractive fence, which is commonly referred to as a “spite fence”. In California:
“Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. Any owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance prescribed in Title 3, Part 3, Division 4 of this code.” (Civil Code Section 841.4)
Since fencing regulations can vary between cities and neighborhoods, we recommend consulting with a real estate attorney before proceeding with construction or addressing a conflict with a neighbor regarding fences. An attorney can help you determine your rights and responsibilities, and ideally reach a peaceful resolution to your fencing dilemma.