A Word About Fencing with Neighbors

If one of your rental properties has a fence that runs between your property and that of a neighbor, there is a high potential for issues with the person on the other side of the fence. Perhaps the weather has caused significant damage, the wind has blown the fence down, or perhaps someone’s pet has caused serious damage. No matter what the cause, the fence has to be repaired or replaced. But the big question is, “Who has to pay the bill?”

You have two choices, you can suck it up and pay the full bill, or you can try talking to the neighbor and working out a deal whereby both of you bear some of the cost. If you are very lucky and the neighbor happens to be easygoing and willing to foot his share of the bill, you can stop reading now. But, on the other hand, the neighbor is unwilling to work with you, you may have to go down another road.

Expectations

When the fence falls down, your first thought might be that the neighbor should be okay with writing a check for their share of the bill so that the fence can be repaired or replaced promptly. If things actually go like this, everything is perfect. Sadly, the majority of property owners do not want to fork over the money. You might hear excuses like, it was your tenants’ fault, or that your bid for the work is too high, or simply that they do not have the money.

When your request for financial assistance with repairing or replacing the fence goes ignored or the neighbor answers without being able to give you any money at all, what are you to do? According to California law (updated in 2003 to make it easier to understand), you may have the right to compel your neighbor to help pay.

However, you must follow every provision in the law, understand that this law requires you as the property owner do your part to give the neighbor sufficient notice, provide them with a “reasonable” bid and scope, and all while taking into account your neighbors’ ability to pay their share of the repair/replacement bill.

Governing Law 841 Reads:

“(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 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.

(2) Where a landowner intends to incur costs for a fence described in paragraph (1), the landowner shall give 30 days’ prior written notice to each affected adjoining landowner. The notice shall include notification of the presumption of equal responsibility for the reasonable costs of construction, maintenance, or necessary replacement of the fence. The notice shall include 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.

(3) The presumption in paragraph (1) may be overcome by a preponderance of the evidence demonstrating that imposing equal responsibility for the reasonable costs of construction, maintenance, or necessary replacement of the fence would be unjust. In determining whether equal responsibility for the reasonable costs would be unjust, the court shall consider all the following:

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

(B) Whether the cost of the fence would exceed the difference in the value of the real property before and after its installation.

(C) Whether the financial burden to one landowner would impose an undue financial hardship given that party’s financial circumstances as demonstrated by reasonable proof.

(D) The reasonableness of a particular construction or maintenance project, including all of the following:

(i) The extent to which the costs of the project appear to be unnecessary or excessive.

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

(E) Any other equitable factors appropriate under the circumstances.

(4) Where a party rebuts the presumption in paragraph (1) by a preponderance of the evidence, the court shall, in its discretion, consistent with the party’s circumstances, order either a contribution of less than an equal share for the costs of construction, maintenance, or necessary replacement of the fence, or order no contribution.

(c) For the purposes of this section, the following terms have the following meanings:

(1) “Landowner” means a private person or entity that lawfully holds any possessory interest in real property, and does not include a city, county, city and county, district, public corporation, or other political subdivision, public body, or public agency.

(2) “Adjoining” means contiguous to or in contact with.”

So as long as you give your neighbor the proper amount of notice and plenty of being reasonable when talking to them, you should be able to carry on with your new fence project. The best thing you can do is start with a friendly conversation with the affected neighbor.