(by Keith Turner and Justin Escano)
There are all sorts of legal disputes regarding the fences and walls between property owners. Many property owners assume that the fence or wall that separates their property from their neighbor’s land are literally on the property line. However, often that is not the case. Generally, only an accurate land survey can determine whether the fence or wall is in relation to the property line.
A property owner’s legal rights and duties depend can depend on whether the fence or wall meets the legal definition of “division fence” or “party wall.”
By statute, a “division fence” is a fence, wall or other such structure that is actually on the coterminous boundary line. If it is completely on the property of one of the adjoining owners, it is not a division fence. However, the land need not be completely enclosed in order to maintain a boundary fence closing in one side of the property, and a natural barrier can form part of the enclosure. Civil Code §841.
A “party wall” is distinguished from a “division fence.” A “party wall” a wall between two adjoining properties that is used, or intended to be used, by both owners in the construction or maintenance of improvements on their respective properties. The existence of a party wall is not determined by its location. It may stand partly on each of the adjoining properties or entirely on one of the parcels, and it may or may not be the common property of the two coterminous. A party wall is generally created by an express agreement between the adjoining owners, but the caselaw provides that a court can deem such a structure to be party wall agreement when it is fair and equitable or from the acts and conduct of the parties and the circumstances surrounding the construction of the wall, such that one owner is estopped from denying its existence against the other. (See, e.g. Guttenberger v. Woods (1876) 51 Cal. 523.
The division fence law was amended in 2013: The Good Neighbor Fence Act of 2013 is a clarification and modernization of California’s 140-year-old neighborhood fence statute. The Act rewrites California Civil Code section 841, presumes equal responsibility for neighboring landowners for a boundary fence, and explains how to rebut this presumption. With this change, the California legislature aims to minimize boundary fence disputes and prevent unjust enrichment between neighboring landowners.
The Old Statute
Civil Code section 841 was originally enacted in 1872. The statute simply stated that neighboring landowners were “mutually bound equally to maintain” the boundaries and monuments between them.” The statue also states that property owners were responsible for contributing a “proportion” of the value of the fence, although measurement of that proportion is not explained. In its report on the Good Neighbor Fence Act of 2013, the Assembly Committee on Judiciary states that the statute was originally envisioned for “Gold Rush era boundary fences,” primarily used for the prevention of roaming livestock between two properties. The Committee argues that the statute needs to be updated to address modern shared fence issues, where it is not unusual for a property owner to share fences with three or four other neighbors.
The updated statute presumes equal benefit to neighboring landowners from any dividing fence. It also presumes equal responsibility between neighbors for coasts of construction, maintenance, and necessary replacement of the fence.
The statute requires a landowner to give 30 days’ written notice to a neighbor before incurring costs for construction or maintenance of the fence. This notice must list several details, including the nature of the problem with the fence, the estimated costs, and a proposed cost-sharing approach.
Once notice is given, both neighbors are presumed to be equally responsible for those costs. However, the presumption of equal responsibility can be overturned if, by a preponderance of the evidence, one party shows that equal responsibility would be unjust. If the cost of the fence for one neighbor would exceed the difference in property value before and after installation, or if the cost of the fence would impose undue financial hardship, a court may overrule the presumption. Furthermore, if the project is unnecessary, excessive, or simply the result of one neighbor’s personal aesthetic preferences, a court may order that party to contribute a larger portion, or the entire sum, of the cost of the fence.
With these updates, the legislature seeks to continue Civil Code section 841’s protection against unjust enrichment of a neighbor who benefits but does not pay for a border fence. Furthermore, the legislature aims to unify state law, instead of forcing landowners to rely on ambiguous local ordinances. Click here to read Judiciary Assembly Committee’s report on the Good Neighbor Fence Act of 2013.