In 2013, the California legislature enacted the “Good Neighbor Fence Act of 2013.” The Act appears as section 841 of the Civil Code. It replaces a boundary-fence statute which had been on the books since 1872. The older version pertained to the costs of maintaining fencing by adjoining landowners. However, it said nothing about the initial construction of a fence. Moreover, it was addressed to the problems of a time when fencing was an issue primarily between owners of agricultural property. Much has changed since 1872. Nowadays fencing issues largely arise between owners of adjacent residential property.
The starting point in section 841 occurs when one property owner intends to incur costs associated with the construction or maintenance of a fence between the properties. Assuming that the property owner who wants to construct a fence (or perform maintenance on an existing fence) also wants the owner of the adjoining property to share in the cost, then 30 days notice of the intention to construct or maintain the fence must be given.
The required notice must include notification that the law presumes that adjoining landowners are equally responsible for the reasonable costs of construction, maintenance, or necessary replacement of a fence. It also must include a description of the fence, the problem the fence addresses, the proposed solution for addressing the problem, the estimated costs, the proposed cost-sharing approach, and a proposed timeline.
Section 841 does not provide a mechanism for enforcing the sharing of the cost of construction or maintenance of a fence. However, it does provide a series of factors which a court should look to in considering how to resolve possible disputes. In particular, it provides that the presumption that the fence equally benefits both property owners may be overcome if one of the owners can demonstrate that imposing equal responsibility for the costs would be unjust.
In order to decide whether imposing equal responsibility for the costs would be unjust, the court is to consider the costs and benefits to both parties, whether the value of the property would increase beyond the cost of the fence, the financial burdens or hardships involved, and the reasonableness of the proposed project. If an objecting adjoining owner succeeds in convincing the court that the presumption of equal costs and benefits is inappropriate, the court may order either a contribution of less than an equal share for the costs of the project, or that no contribution be required at all.
What happens if court orders apportionment of the costs, and the objecting owner refuses to pay? The statute doesn’t say. May the court which ordered the apportionment enter a judgment against the objecting party for that party’s share? Does the owner who pays for the fence acquire a lien on the other owner’s property to secure payment? The statute doesn’t answer either of these questions. What if the proponent of the fence hears nothing from the other owner and then goes forward with the project without taking the matter to court? Presumably what would happen is that once the project is completed and paid for, the proponent would seek recovery of the apportioned amount suing the other owner in small claims court.
Statutes such as section 841 are generally referred to as “good neighbor” statutes. However, as a practical matter, if one owner objects and the parties wind up in court, it’s unlikely that the parties will view each other as good neighbors. For that reason, if there is a dispute it may well be worth it for proponent of the fence to install or maintain it unilaterally, and to absorb all of the cost. In conducting such work, pains would need to be taken to ensure that the fence does not encroach on the neighbor’s property. This of course would require obtaining a survey of the boundary line and having it properly staked in order to avoid any encroachment problem.