Dear Counselor: Good Fences Make Good Neighbors

Question: After the winds that blew hard here last week, the fence that separates my property from my neighbor’s was badly damaged. The fence has been in disrepair for some time, and it bothers me.

Because of the way our houses are situated and our respective landscaping choices, the fence features more prominently on my side than it does on his. I spoke with someone from a fencing company that had some very good referrals. After looking at the fence, the fence guy told me that I could reinforce it in a few places, but that would only be a temporary fix — that the fence may not even hold through the winter.

The other option was to go for an entirely new fence. There are a few designs that range in price from expensive to very expensive.

I spoke with my neighbor. He balked at the price and said that he could do the temporary fix for free so long as I bought the materials. I like the idea of “free,” but I’ve seen my neighbor’s work in other places, and let’s just say I’m not impressed. Can I insist on a new fence? Or do I have to try my neighbor’s idea?

Answer: The famous line from Robert Frost’s poem is that “good fences make good neighbors.” But don’t forget that Frost’s larger point was just the opposite — that “something there is that doesn’t love a wall.”

Even less loved than the wall itself is the uncomfortable conversation one has to have with one’s neighbor about building or repairing one. It is made even more uncomfortable by a neighbor who just wants to postpone the problem rather than deal with it. Our state Legislature put into place a law that in most cases requires adjacent property owners to share equally in the costs of replacing a fence.

The Good Neighbor Fence Act in California passed into law in 2014 requires that “adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.” So the starting point for any fence issue is that both property owners equally bear the benefits and the burdens of any fence maintenance and construction.

The law provides that “(a)djoining 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.”

Although the presumption is that you and your neighbor have to share the costs equally, the law allows for certain exceptions. For example, your neighbor can claim that the financial burden to him is substantially disproportionate to the benefit conferred upon him by the fence.

The law also provides an exception to equal responsibility if the financial burden to one landowner would impose an undue financial hardship. Of course, your neighbor would have to produce some sort of proof of undue financial hardship.

There is also an exception if the costs of the project appear to be unnecessary, excessive or the result of the landowner’s personal aesthetic, architectural or other preferences. So if your choice of the “very expensive” fence includes special work, you may need to bear that cost yourself.

You can insist on the new fence, but if your neighbor doesn’t pay his half, you may need to bear the full cost yourself now and seek reimbursement from your neighbor later in court.

If court action is anticipated, you will need to follow the formal process outlined in the statute, which requires giving written notice to your neighbor 30 days ahead of any work. You have to include the terms of the state law above as well as 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.”

So the law allows you to insist on getting your new fence, and your neighbor likely will be required to pay for one-half. But perhaps the most practical solution may rest in a compromise that keeps you out of court.

Consider going along with your neighbor’s suggested repair this once, but have him agree that the next time it comes down (which it most certainly will) that total replacement be required and paid. If money is an issue, maybe you can offer to pay it all upfront with installment payments from your neighbor over the year.

Hopefully, that will keep you out of court because, as Frost might have said, “Something there is that doesn’t love a lawsuit.”


Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.

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By | 2018-02-06T22:38:08+00:00 December 23rd, 2017|Dear Counselor|0 Comments

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