By Glen Hansen
Your neighbor builds (or wants to build) an ornate wall between your two properties. Then your neighbor emails to you the invoice, and asks you to contribute one-half the cost of the edifice. Do you have to pay if the cost of the wall is excessive in your opinion? What if you can barely afford half the cost of a chain link fence, let alone THAT wall? Prior to January 1, 2014, the law was not too helpful in answering those questions.
For over 140 years, Civil Code section 841 described the duty of neighbors to maintain boundaries and fences between them. That provided as follows:
Coterminous owners are mutually bound equally to maintain:
1. The boundaries and monuments between them;
2. The fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he afterwards incloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter.
The courts treated the shared responsibility described in section 841 as an implied contract between neighboring owners, rather than a statutory liability. (See e.g., Bliss v. Sneath (1894) 103 Cal. 43, 45 [“The fact that the Civil Code has changed some common-law rules, by which the rights and obligations of persons were ascertained, does not make the new or changed obligations any less obligations arising from implied contracts than were the different obligations fixed by the common law”]; Marshall v. Wentz (1915) 28 Cal.App. 540 , 544 [“Section 841 of the Civil Code provides that one coterminous landowner must refund to the other a just proportion of the value of any division fence, if he uses it as part of his inclosure, and it was held in Bliss v. Sneath, 103 Cal. 43, that his liability arose from contract.”])
Increasingly, trial courts have found the original statutory language in section 841 unhelpful in resolving fence disputes between neighbors. As one Superior Court judge commented: “Before revision [in 2013], Civil Code section 841 really did little to guide the parties or the courts in resolving disputes. … The longstanding language did little to address initial construction issues or the type of fencing, its height, etc., that may be used.” (Hon. Judy Holzer Hersher, “Poet Robert Frost and the California Legislature Agree: Good Fences Make Good Neighbors,” Sacramento Lawyer, March/April 2014, p. 10 (found at http://content.yudu.com/Library/A2quvs/SacramentoLawyerMaga/resources/index.htm?referrerUrl=http%3A%2F%2Ffree.yudu.com%2Fitem%2Fdetails%2F1743641%2FSacramento-Lawyer-Magazine—March-April-2014).)
In 2013, the Legislature recognized that the original language in section 841 was antiquated and circumstances involving neighboring property owners have changed. The staff of the Assembly Committee on Judiciary explained that, in 1872 when the law was originally enacted, “the primary benefit associated with erecting a boundary fence around one’s property was to, ‘prevent the ingress and egress of domestic animals as they are usually nurtured and confined thereon, and to protect the premises enclosed from unlawful encroachment.’” (Assembly Comm. Judiciary, Analysis of AB 1404, May 6, 2013, p. 5 (found at http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_1401-1450/ab_1404_cfa_20130506_100830_asm_comm.html), quoting Meade v. Watson (1885) 67 Cal. 591, 593.) The original language in section 841 reflected this “narrow understanding of the benefits associated with, and the purposes served by a boundary fence.” (Ibid.) However, the Judiciary Committee noted that in a society no longer dominated by agrarian pursuits, “updating and modernizing the statute to better reflect the modern benefits associated with neighborhood fences makes sense, such as protecting the premises against invasions of privacy and unlawful encroachment.” (Id. at pp. 5-6.) In today’s urbanized California, fencing between properties is “usually necessary and generally expected” and “serves the basic functions of preserving each neighbor’s privacy and provides a visual demarcation of property lines.” (Id. at p. 6.) The Legislature recognized the continuing need for a presumption that “adjoining landowners share an equal benefit, and an equal responsibility for the reasonable costs of construction and maintenance, of any fence dividing their properties.” (Ibid.) But the Legislature also recognized that “neighborhood fences are not always mutually beneficial, and that an adjoining landowner who clearly receives little or no benefit from a boundary fence should not be forced to subsidize an adjoining landowner’s fence construction.” (Ibid.) The Legislature therefore sought to both codify that presumption and “prevent the inequities that would result from a hard and fast ‘blanket’ presumption of equal benefit and responsibility.” (Ibid.)
And so the Legislature passed and the Governor signed Assembly Bill 1404, the “Good Neighbor Fence Act of 2013.” (Stats. 2013, ch. 86.) AB 1404 replaced Civil Code section 841 and continued the presumption in that statute that “adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.” The new legislation provides that adjoining landowners are presumed to not only share an equal benefit from any fence dividing their properties, but also to be equally responsible for the reasonable costs of construction, maintenance, or necessary replacement of the fence. Under the new section 841, that presumption can be overcome “by a preponderance of the evidence demonstrating that imposing equal responsibility for the reasonable costs of construction, maintenance, or necessary replacement of the fence would be unjust” In determining whether equal responsibility for the reasonable costs would be unjust, section 841 states that the court shall consider all of the following:
(A) Whether the financial burden to one landowner is substantially disproportionate to the benefit conferred upon that landowner by the fence in question.
(B) Whether the cost of the fence would exceed the difference in the value of the real property before and after its installation.
(C) Whether the financial burden to one landowner would impose an undue financial hardship given that party’s financial circumstances as demonstrated by reasonable proof.
(D) The reasonableness of a particular construction or maintenance project, including all of the following:
(i) The extent to which the costs of the project appear to be unnecessary or excessive.
(ii) The extent to which the costs of the project appear to be the result of the landowner’s personal aesthetic, architectural, or other preferences.
(E) Any other equitable factors appropriate under the circumstances.
The new section 841 also requires a landowner who intends to incur costs for the construction or maintenance of a shared fence with an adjoining landowner, and who wishes to have reasonable contribution for those costs by the adjoining landowner, to provide that neighbor reasonable written notice of at least 30 days to an adjoining landowner prior to any construction or maintenance of the fencing.
However, the scope of section 841 is not unlimited. Public entities and agencies are specifically excluded from its provisions. That is because the Legislature found that the presumption of equal responsibility and contribution for shared fencing “does not make sense in the context of public lands, such as California’s 1.5 million acres containing state parks, or in the context of many other state and local public lands.”
So who should pay for your neighbor’s ornate wall on the line between your adjoining properties? It depends. While the law will presume that both of you should share equally in the cost, you can challenge that presumption by showing (a) half the cost of the wall is substantially disproportionate to your benefit from that wall; (b) the cost of the wall exceeds the difference in the value of your property before and after its installation; (c) the financial burden of half the cost would impose an undue financial hardship on you, given your financial circumstances; (d) the wall’s particular construction is unreasonable; and (e) other equitable factors appropriate under the circumstances. Hopefully, you can resolve the matter amicably with your neighbor. If not, the courts have much greater guidance under the new statute in resolving the dispute on equitable grounds.
Glen Hansen is senior counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.