Who is Responsible for a Boundary Fence?

Good Fences Make Good Neighbors

In the “Mending Wall,” Robert Frost describes two neighbors doing routine maintenance on their boundary wall. The one neighbor is unthinkingly good-humored about the work: “Good fences make good neighbors” is his refrain. The more whimsical protagonist wonders, however, “Why do they make good neighbors?” He reassures his neighbor that his apple trees will not cross the fence and eat his pinecones.

Frost’s dreamy metaphysics aside, a California real estate attorney would likely agree with the other neighbor, answering that good fences do make good neighbors, because it is human nature for even the most minor property dispute to quickly escalate, driving bank accounts and relationships into the ground. Better to drive accurate fence posts.

Since the United States took possession of the California territory in 1848, droves have immigrated to wide-open land and constant weather in pursuit of the American dream. (The ethics and legality of the Mexican cession will not be covered in this article.)

A big part of that dream is to own land: a plot of property with a yard, a garden, or even a ranch enclosing a few acres. However, before you move into your dream home, be sure you know California’s real estate laws regarding boundary lines and fences: a small mistake made by a new or previous owner could cause an enormous legal headache and make for bad neighbors for years to come.

In some states, a fence belongs to whomever puts up the fence and must stay on that person’s side of the boundary line. However, in California, responsibility for the repair, maintenance, and construction of a boundary fence depends primarily on whether or not there is a written agreement between the landowners, with the presumption that, in the absence of an agreement, adjoining landowners bear equal responsibility for any boundary-line markers (Civ. Code §841).

IF THERE IS AN AGREEMENT

Check with your seller to see if a written agreement exists governing any of your boundary lines—this should be part of the seller’s regular disclosure. You can also check with the title company: such agreements should usually be recorded with both your deed and your neighbor’s deed. If there is a preexisting agreement, you will need to abide by the maintenance agreement or negotiate a new agreement.

IF THERE IS NO AGREEMENT

Under California law, the presumption is that landowners take on equal responsibility for equal benefit: any boundary markers (called “monuments” in legalese) in theory serve each owner equally, and so both should maintain them equally.

However, given this presumption, it is possible to show that the boundary fence does not provide equal benefit: if you can demonstrate that equal responsibility for incurred costs would be unjust, the court may determine that there is a weighted responsibility based on undue burden.

Furthermore, if a landowner intends to engage in maintenance or construction that will incur costs to adjoining owners, the initiating party must give 30 days’ written notice to each affected owner. It’s a good idea to consult a California real estate attorney regarding the specific information such a notice should include.

KNOW YOUR LIMITS: GET A SURVEY

Before building or replacing a boundary fence, you should always get a survey. A survey will give you the exact limits of your property based on the description in the deed, ensuring the accurate placement of the fence. Placing the fence to either side of that boundary could cause problems down the line, and it’s a good idea to get a written boundary line agreement if there is some reason the fence cannot accurately follow the real boundary line—your title company may even insist on it for insurance purposes. If the survey reveals that the boundary was improperly marked by previous owners, a quiet title action may be required to settle the real boundary. A survey might also reveal that there is an ambiguity or contradiction in the description of the boundary in the relevant deeds, which might similarly require a quiet title action. See our previous post here.

BAD NEIGHBORS: SPITE FENCES & EYESORES

Boundaries are the threshold of human relationships, and those relationships can become contentious. People can sometimes embark on expensive projects just to annoy their neighbors. If your neighbor builds a “spite fence,” a fence of at least 10 feet in height erected just to annoy you, you can bring a “private nuisance suit” against them. If your problem with the fence is more aesthetic, then you should consult the relevant city codes or neighborhood restrictions that might apply, or if your home is governed by an HOA, check your Covenants, Conditions, and Restrictions (“CC&Rs”). An experienced California real estate attorney can help with this.

Frost may be right that “Something there is that doesn’t love a wall,” whether it’s elves or elsewise, but when it comes to California real estate law, good fences can go a good ways toward making good neighbors!