BPE Law Group issued the following announcement on Oct. 2.
Boundary line fences have a long history of generating disputes between neighbors. One neighbor wants to change the location, another wants a particular style of fence. One wants nothing to do with the maintenance, another seeks pristine maintenance. All of these create strife and foster hostility between neighbors.
If I may borrow from Robert Frost, he stated that “Good fences make good neighbours”. But what is one to do when one neighbor chooses not to cooperate in the maintenance of the boundary fence.
That issue has largely been settled in California by Civil Code § 841 which states “Adjoining landowners shall share equally the responsibility for maintaining the boundaries and monuments between them.” What this statute clearly settles is that a boundary fence presumptively provides a common benefit between neighbors and therefore the neighbors have an equal responsibility to share in the cost of repair, replacement and maintenance of the fence.
What if your neighbor still does not want to share in the responsibility of maintaining the boundary fence. Under CC §841 a landowner may give notice to the neighbor of the problem with the fence that needs to be repaired, the proposed solution to the problem with the fence, estimated costs to repair, proposed timeline for completing the repair or construction, proposed cost sharing allocation and identify the presumption of equal responsibility between the owners. This notice must be provided at least 30 days prior to any repair or construction being completed on the fence.
In the extreme circumstances, the non-cooperating neighbor can rebut the presumption of equally sharing the costs of the fence. To do so requires the neighbor to show disproportionate benefit, financial constraints, etc. However, the non-cooperating neighbor is required to provide “reasonable proof” to support the contentions.
Hopefully the notice will spark the neighbor to take prudent actions in working to get the fence repaired or replaced. However, sometimes, the neighbor refuses, in that situation, you should seek competent legal advice to discuss your potential remedies. The most common remedy is to take the neighbor to small claims court to recover the non-paying neighbor’s share of the costs for the fence repair. To do this, the repair must be completed and paid for prior to the lawsuit. If forced to small claims, the presumption will provide the basis for an award and allow you to recover the proportional share from the neighbor.
If you find yourself in a situation regarding a fence dispute with your neighbor, do not be tempted to engage in self help as that is frowned upon by the courts in California. Seek competent legal advice regarding the matter and allow an attorney to assist you in navigating the dispute before it becomes a significant problem. At BPE Law, we routinely assist clients related to boundary lines and fences and have helped guide many people in resolving fence and boundary issues both through litigation and in alternative dispute resolution methods.
Original source can be found here.