The California Legislature, in its infinite wisdom, recently updated its law regarding “good neighbor” fences, that is, a common fence dividing two properties. The original law had been in place since the 1870s, and simply provided that both owners were mutually responsible for common fences. As a practical matter, if you paid to put up a fence, your neighbor was obligated to reimburse you for one half of the “reasonable cost” of that fence.
The new law creates much more certainty with regard to neighbors’ responsibilities regarding their common fence, and provided some guidance as to what situations might warrant not splitting the cost evenly. However, it also provided for a much more formal process and procedure for erecting a common fence and recovering your half of the cost. Failure to adhere to the letter of the new law could jeopardize your right to recover your half of the cost.
You can see the new law for yourself here.
In short, the new law states that there is a presumption that neighbors equally benefit from a common fence, and that the cost for building or fixing a common fence should be equally shared. It requires that a party intending to build or fix a common fence must first send a notice to their neighbor prior to doing any work. It also lays out the circumstances under which the presumption that both parties equally benefit (and therefore should pay equally) may be overcome.
If you’re going to build or fix a common fence, you have to send your neighbor a notice of your intention to do so at least 30 days before work starts. The notice must include the following information:
Of course, there are situations where both neighbors do not both equally benefit from a shared fence, and therefore the costs should not be shared equally. The new law provides guidelines for determining where this might be the case. Courts are directed to consider the following in trying to determine if costs should be divided other than equally:
None of the above factors are particularly specific, and are simply guidelines. The Courts are given broad discretion to split the costs of a common fence in essentially any manner that they view as fair. In extreme circumstances, a Court could even order that one party must be responsible for the entirety of the fence project.
Ultimately, while the new process may be a little daunting and incredibly specific, there is nothing in the law that says that you and your neighbor cannot come to an agreement outside of this procedure. (Of course, it is always best to put any agreement in writing.) In most circumstances, friendly neighbors should be able to work out fence problems without the involvement of any lawyers or courts. In rare circumstances where there is something unique about your property, your neighbor won’t agree to split the cost evenly, or you just don’t get along with your neighbor, it may be in your interest to talk about the specifics of your situation and your options with a local attorney. (Just a reminder: initial consultations are always free here at The Law Office of Jason L. Eliaser!) The most practical first step is to simply talk to your neighbor about any fence problems you might have.
Because good fences may make good neighbors, but good communication makes even better neighbors.
Picture of fence in Little Italy, San Diego, Courtesy of Peyri Herrera, published under a Creative Commons Attribution-NoDerivs 2.0 License. Thanks, Peyri!