RE: Fences & Walls Newsletter

FENCES  AND WALLS

Homeowners often ask whether they are obligated to split the cost to repair and/or replace property line fences with their neighbor.   The law distinguishes between fences that are constructed on the property line from those constructed entirely on one of the properties.

If the fence is constructed entirely on your property, then your neighbor has no legal obligation  to share in the cost of repair and/or replacement. If the fence is constructed entirely on your neighbor’s property, then you have no legal obligation to share in the cost of repair and/or replacement.

However, if the fence is on the property line between two homeowners, then both homeowners are legally obligated  to share in the cost of repair and/or replacement.  A fence that is on the property line is called a “division fence.”

Division  Fences.

California  Civil Code section  841 requires  each property  owner to pay the “reasonable” costs to maintain  and/or replace “division fences.”

For example,  assume that there is a 75′ wood fence between  two tract homes.   The fence runs the entire length of the back yard separating  the two properties.  Each owner is required  to pay 50% of “reasonable” repair and/or replacement costs if the fence is damaged  or destroyed.

California Civil Code section  841 states:

(a) Adjoining  landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.”

This means that homeowners are generally obligated  to split the cost to maintain  and/or replace fences between  them.

Repair and/or Replacement must be “Necessary.”

 The repair must be deemed “necessary” for Civil Code section  841 to apply.  For example, assume that there is a perfectly  good wood fence separating two tract homes.   One owner wants to replace the wood fence with a block wall.  The other owner is not required  to share in the cost because the wood fence is still good and it is not “necessary” to replace it.

Repair and/or Replacement costs must be “Reasonable.”

The repair costs must be deemed “reasonable” for Civil Code section 841 to apply.  For example, assume that there is a deteriorated wood fence separating two tract homes.  Both homeowners agree that it is “necessary” to replace the fence.  One owner wants to spend $15,000.00 to replace the fence with a block wall, while the other owner has received an estimate to install another wood fence for $5,000.00.

Although the repairs in this example are “necessary,” the cost to replace a wood fence with a block wall is likely “unreasonable” since the upgrade will cost 3 times the cost of the wood fence and results from a homeowners personal preference.

California Civil Code section 841(b)(3)(D)(ii) states that a homeowner is not legally obligated to pay for any repair or replacement if:

“(ii)  The extent to which the costs of the project appear to be the result of the landowner’s personal aesthetic, architectural, or other preference.”

The homeowners are legally obligated to split the cost to replace the wood fence with another wood fence.  Neither is legally obligated to pay for any enhancement such as block walls that are based upon personal aesthetic, architectural, or other preference of the other homeowner.

Apportionment of Repair and/or Replacement costs.

If the repair and/or replacement of a fence results in a disproportionate benefit to only one homeowner, then the other homeowner is only legally obligated to pay for his portion of the repair.

For example, if one neighbor’s  lot is twice as deep, then the owner of the smaller lot is only legally obligated to pay for half of the cost to repair and/or replace that portion of the fence that runs along his property.

California Civil Code section 841(b)(3)(A) states that a homeowner is not obligated to pay the cost to repair and/or replace a common fence if:

“(A)… the financial burden to one landowner is substantially disproportionate to the benefit conferred upon the landowner by the fence in question.”

The homeowner is only legally obligated to pay for repair or replacement for that portion of a common fence that runs along his property line.

Summary.

In summary, Homeowners are generally obligated to split the cost to maintain and/or replace property line fences. Homeowners are generally not obligated to split the cost to upgrade a fence based upon personal aesthetic, architectural, or other personal preferences. Homeowners are only legally obligated to pay for repair or replacement for that portion of a common fence that runs along his property line.

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