FENCES AND WALL MAINTENANCE/REPLACEMENT

Each windy season I receive calls from homeowners whose fences/walls were damaged by wind and want to know if the neighbor is responsible for half of repair or replacement cost.

The Law

California law requires adjacent homeowners to share equally in the cost of repair or replacement of common fences. Civil Code §840(a) states:

(a) Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.
(b)(1) Adjoining landowners are presumed to share an equal benefit from any fence dividing their properties.

There are some limitations. For example, say that your home has a wood fence that was destroyed last week by high winds. You want to replace the wood fence with a block wall and ask your neighbor to split the cost 50-50.

Your neighbor is not legally required to pay for the block wall, but is required to split the “reasonable” cost to replace the wood fence. If the block wall estimate is $10,000, and the wood fence replacement is $2,000, then your neighbor is only required to contribute $1,000 towards your block wall.

30-Day Written Notice

How do homeowners enforce these rights? Civil Code §841(b)(2) requires you to send your neighbor Written Notice at least 30-days prior to date of the proposed fence repair or replacement that states as follows:

1. A description of the problem (i.e. damaged, destroyed or unusable fence);
2. Estimates for repair;
3. Timeline to complete the repairs; and
4. A statement that both owners are equally responsible for the reasonable repair/replacement costs under California law.

The neighbor is then required to pay their share of the repair or replacement cost unless he/she has a legally justifiable reason for not paying as discussed below.

Neighbors Who Refuse to Contribute

If your neighbor either ignores your 30- day Written Notice, or simply refuses to contribute anything towards the repair or replacement of the fence, then you can sue your neighbor in small claims court without an attorney for up to $10,000.

However, prior to suing your neighbor, which will certainly destroy the possibility of a peaceful relationship with your neighbor, I recommend simply speaking to them in hopes of working out some form of compromise. Perhaps they will agree to reimburse you over a 12 or 24 month period.

Assuming that it is impossible to work with your neighbor, then you will have no option but to sue your neighbor. The code provides a limited remedy for any neighbor who disputes payment as set forth below.

In order to avoid paying their share of fence repair or replacement, your neighbor will need to prove by a preponderance of evidence (i.e. more likely than not true) that (1) he is “indigent” and has no money to contribute, (2) the repair costs are “unreasonable” or (3) the repair disproportionately benefits the neighboring property owner.

If the neighbor cannot prove (1), (2) or (3), then the court will issue judgment against the neighbor for their share of the fence.

Spite Fence.

Many neighbors who refuse to contribute to a common fence then complain that the adjacent property owner built an unsightly fence, which they refer to as a “spite fence.”

The vast majority of these unsightly fences do not qualify as a “spite fence” under California law. Civil Code section 841.4 defines a spite fence as a:

“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.”

A “spite fence” not only includes fences or walls exceeding 10 feet in height, but can also include trees and shrubs planted on the property line that exceed 10 feet and unreasonably interfere with light and/or use of the neighboring property.

If a court determines that there is a “spite fence,” then the court can order the fence removed or modified. This determination can only be made by a Superior Court judge and would require the parties to retain attorneys.
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