One of the most common disputes arising among landowners in California is, when a shared fence needs to be repaired or replaced, which neighbor pays? The short answer is that California law says that both share equally in the cost. However, with most issues at law, the complete answer is never that simple.
Cal. Civ. Code § 841 is California’s attempt to resolve this all too common dispute between neighbors. Section 841 establishes a presumption that with a fence dividing the property of two or more landowners, and absent a prior written agreement to the contrary, the adjoining landowners “shall be presumed to be equally responsible for the reasonable costs of construction, maintenance, or necessary replacement of the fence.” (Cal. Civ. Code § 841(b)(1).) Section 841, in addition to establishing the presumption that the parties will split the costs equally, it also lays out how the landowner who desires to repair or replace the fence must act in order to be entitled to demand an equal contribution from the adjoining landowner(s). Prior to a landowner seeking to repair or replace a fence, that landowner must provide 30 days’ written notice to their affected neighbors and include the following:
- Notification of the presumption of equal responsibility for the reasonable costs of construction, maintenance, or necessary replacement of the fence;
- A description of the nature of the problem facing the shared fence;
- The proposed solution for addressing the problem;
- The estimated construction or maintenance costs involved to address the problem;
- The proposed cost sharing approach; and
- The proposed timeline for getting the problem addressed.
(Cal. Civ. Code § 841(b)(2).)
Section 841, however, is not absolute. An adjoining landowner may rebut the presumption of equal responsibility for a shared fence by “demonstrating that imposing equal responsibility for the reasonable costs of construction, maintenance, or necessary replacement of the fence would be unjust.” (Cal. Civ. Code § 841(b)(3).) In determining whether to reject the presumption of equal cost sharing, a reviewing court will look to determine:
- Whether the financial burden to one landowner is substantially disproportionate to the benefit conferred upon that landowner by the fence in question;
- Whether the cost of the fence would exceed the difference in the value of the real property before and after its installation;
- Whether the financial burden to one landowner would impose an undue financial hardship given that party’s financial circumstances as demonstrated by reasonable proof;
- The reasonableness of a particular construction or maintenance project, including all of the following:
- The extent to which the costs of the project appear to be unnecessary or excessive.
- The extent to which the costs of the project appear to be the result of the landowner’s personal aesthetic, architectural, or other preferences; and
- Any other equitable factors appropriate under the circumstances.
(Cal. Civ. Code § 841(b)(3)(A)-(E).)
A reviewing court, who determines that the cost should not be split equally, may order “either a contribution of less than an equal share for the costs of construction, maintenance, or necessary replacement of the fence, or order no contribution." (Cal. Civ. Code § 841(b)(4).)
In seeking to replace or repair a shared fence, the first step must be to determine whether the share fence needs to be replaced or repaired. Many landowners may desire to upgrade an existing fence. However, a desire to upgrade likely will not fall within Section 841 as this law only contemplates shared costs to remedy a “problem” with the shared fence. (Id.) Before seeking to impose costs on a neighbor, it would be a good practice to first obtain the opinion of a professional as to whether there exists an actual problem with the shared fence such that Section 841 would be implicated. Once a problem has been identified, provide the required written notice and you should be in the clear. Although, prior to providing written notice to a neighbor, it would be a good idea to keep in mind that the people on the other side of the fence are your neighbors and a short walk to have a chat might avoid unpleasantness in the future.