Real Estate

Real Estate Matters

Fence disputes and good neighbor fences

We have all heard the expression, "Good fences make good neighbors." Nevertheless, there are countless bitter disputes between neighbors over the location, construction and maintenance of fences. Fortunately, the original California Civil Code Section 841, which was enacted in 1872 and vaguely stated that landowners were "mutually bound to maintain" fences, has been updated and clarified by the Good Neighbor Fence Act of 2013 (the "Fence Act"). Under the Fence Act, which retains codification at California Civil Code, Section 841, the California Legislature laid out specific rules regarding notice, construction and maintenance of fences constructed on property lines.

Under the Fence Act, 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 language seems straightforward and clear, the words "presumed" and "reasonable" provide a lot of wiggle room for attorneys. In fact, the statute goes on to explain what the litigant has to prove to rebut the presumption.

The basic operation of the Fence Act

When a property owner intends to incur costs related to the construction or repair of a fence that runs on a property line shared by a neighbor, the property owner must provide written notice to each of the adjoining neighbors at least 30 days in advance of the work. The notice must include:

1) Notice that the neighbors are presumed equally responsible for the cost.

2) A description of the nature of the problem facing the shared fence.

3) The proposed solution for the problem, including estimated costs.

4) The proposed cost-sharing approach.

5) The proposed timeline.

If the neighbors disagree, they can overcome the presumption by showing, by a preponderance of the evidence, that such allocation of responsibility would be "unjust," such as when the financial burden on the neighbors is substantially disproportionate to the benefit conferred, or if costs of the project are unreasonable. If the neighbors are successful, the court will allocate the costs as it deems appropriate.

So, what does this all mean? It means that, if handled poorly, a common fence issue can result in very unhappy neighbors and very happy lawyers.

It is important to note that this rule of shared responsibility only applies to "division fences," which is to say fences that are located precisely on the coterminous boundary. If the fence is located entirely on one of the properties, then these rules do not apply, even if there is some benefit derived by the adjacent landowner.

As a practical matter, before undertaking any project on a division fence, a homeowner should reach out to the impacted neighbors and begin a dialogue. Some potential issues can be resolved if both parties understand their individual responsibilities and the related procedures imposed by the Fence Act.

Spite fences

Last year I was in Russia meeting with a leading real estate agent in Moscow. As we drove through a beautiful area just outside of the city, we came upon a large residential compound that was surrounded by a massive metal wall that appeared to be about 20 feet tall. I was told that was Mr. Putin's home. While it is clear that this wall would prevent one of Mr. Putin's neighbors from encroaching on his land, and him on theirs, this could be a violation of spite fence rules if the wall was located in California — not to mention a really long commute to the Kremlin.

Section 841.4 of the California Civil Code declares that any fence exceeding 10 feet in height that was "maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance." In many parts of Silicon Valley, the local ordinances provide even more restrictive limitations on the heights of many fences.

Nevertheless, it is interesting that many local homeowners and real estate salespeople have heard that there is a spite fence statute. Unfortunately, they assume that any fence that is constructed in a way that annoys them should be considered a spite fence, and they fail to consider the height of the fence or the intent of the adjacent landowner.

As with most potentially contentious situations, it is important for homeowners to understand the actual law that applies to the situation. Unfortunately, a lot of issues come to a head when someone decides to sell. Some neighbors see this as an opportunity to get "leverage" and others would rather battle with someone who they know is leaving. Either way, it is important that a potential seller speaks with a qualified residential real estate attorney prior to responding to any correspondence from an adjacent homeowner.

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Michael Repka, CEO and general counsel for DeLeon Realty, Palo Alto, formerly practiced real estate and tax law in Palo Alto. He formerly served on the Board of Directors of the California Association of Realtors. He can be reached at MichaelR@DeLeonRealty.com.

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