Good Fences, Bad Neighbors?

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Real Estate Lawsuits Between Neighbors Over Fences and Walls

Los Angeles real estate lawyers know that on January 1, 2014, California’s Civil Code section 841 went into effect.  The dry name of the Code section is called “Maintenance of boundaries, monuments, and fences; responsibilities of adjoining landowners; definitions.”  But it was known as the “Good Neighbor Fence Act.”

The basic premise of the law is that “adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.”

That sounds simple enough.  But any real estate litigation attorney knows that such simplicity can spawn a thousand lawsuits.  While the law states that adjoining landowners shall be presumed to be equally responsible for the reasonable costs of construction, maintenance, or necessary replacement of a fence between their properties, the law doesn’t say when it is “necessary”.

Another section states that the presumption can be overcome by demonstrating that imposing equal responsibility would be unjust.  But there is no hard and fast rule of what would be “unjust”, just more guidance that is subject to interpretation (and litigation).

Does one landowner get a substantially disproportionate benefit from a new fence?

Does the cost of the fence exceed the difference in the value of the real property before and after its installation?

Does the cost of a new fence cause undue financial hardship on one of the neighbors?

Two opposing neighbors could reasonably disagree on all of these issues.  And if the neighbors hire real estate lawyers it goes without saying that litigation lawyers can disagree on everything.

The Code section also directs the parties to look at the reasonableness of a particular project by examining whether the cost “appears to be unnecessary or excessive”, the extent to which the cost appears to be the result of one landowner’s personal aesthetic or architectural preferences, or “any other equitable factors appropriate under the circumstances.”

Needless to say, the law itself introduces so many variable factors to consider that the resolution of these issues appears almost impossible.  The law does allow a court to allocate each side’s contribution unequally in its discretion depending on all of these factors.

However, the big factor for a neighbor who is in a neighbor-on-neighbor dispute and who seeks the help of a real estate law firm is the cost of legal help.  It just doesn’t make sense to spend a lot of money on attorneys to resolve all of the issues set forth in this Civil Code section because the attorneys’ fees would quickly surpass the cost of the neighbor’s share of the fence.

I recently checked the annotated version of Civil Code section 841 to see if any appellate court cases had been decided since the section was enacted in 2014.  The annotations did not show any cases. This makes sense—who would spend several years and thousands of dollars fighting over any of the requirements in this section?

However, it still leaves the essential problem unsolved.  If you ask your neighbor to contribute his half to the building or maintenance of the border wall or fence between your two properties and the neighbor refuses, what is your remedy?  Probably the easiest remedy is to go to Small Claims Court, which has a $10,000 maximum claim amount. In Small Claims Court you don’t need to have an attorney and the case gets heard in a morning or afternoon.  Civil Code section 841 (“The Good Neighbor Fence Act”) may be a good negotiating tool with a recalcitrant neighbor but it is unlikely that it would ever be worth it to file a lawsuit based on this section unless it is in Small Claim Court.

Real Estate Litigation Attorney Laine T. Wagenseller specializes in real estate lawsuits in Los Angeles and Southern California.  The attorneys at Wagenseller Law Firm handle every type of legal dispute that affects your property. Call us at (213) 286-0371.

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