Adjacent Property Owners’
Duty to Maintain Boundary Line
Fence
12/11/05
Dear
Mr.
Duman:
Are
neighbors
obligated to share the cost of repairing and maintaining a fence, which
straddles the boundary between their properties?
Any
information you can provide would be most appreciated.
H.
D., San Leandro
Dear H. D.:
Your question
is one that has troubled many of our readers.
California
Civil Code, Section 841 provides as follows:
“Coterminous
owners are mutually bound equally to maintain:
- The
boundaries and monuments between them;
- The fences
between them, unless one of them chooses to let his land lie without
fencing;
in which case, if he afterwards encloses it, he must refund to the
other a just
proportion of the value, at that time, of any division fence made by
the
latter.”
In order for this law to apply, the fence in
question must be a “division fence’.
The fence structure must lie on the boundary line separating two
adjacent properties. If the fence is
located completely on the property of one of the adjoining owners, it
is not a
"division fence", and is therefore not subject to the provisions of
the law.
Additionally, the obligations imposed under
this statute are limited to owners, whose properties are entirely
enclosed by
fencing. Therefore, a land owner, who has one or more boundary lines
without
fencing is not obligated to contribute to the repair and maintenance of
a
“division fence” under this law.
If the owner later
decides to fully fence and
enclose his property, he then becomes liable for his share of the costs
of
erection and maintenance of the
"division fence" separating his property from his neighbors.
When the statute’s
provisions do apply,
affected property owners are required to contribute, equally, to pay
the cost
of maintaining and repairing an existing “division fence”, or, if
necessary, to
replace the fence altogether. In other words, once a fence is erected,
the
adjacent land owners, thereafter, share an equal ongoing obligation to
maintain
the fence, unless they unanimously agree otherwise, or they take the
fence
down.
The statute
provides that an adjacent
neighbor, who wrongfully refuses to contribute to the maintenance and
repair of
a division fence may be sued by an
aggrieved neighbor. Where the overall amount at issue is less
than the
applicable statutory dollar limit for small claims actions (recently
increased
from $5,000 to $7,000), a lawsuit may be pursued as a small claims
court case,
as an alternative to the formal court system.
As with any
potential civil dispute, readers
with questions should consult directly with their own lawyer for
specific
attention.
FD775 12/02/05
4\column\division.fn4
Readers may address their
questions to The Real Estate
Lawyer, Fred M. Duman, 2807 Castro Valley Boulevard, Castro Valley, California
94546. Mr. Duman will answer those of
general
interest in his column. He reserves the
right to edit the letter for brevity and clarity.
Each real estate problem
usually has its own distinct
circumstances, and frequently is more complicated than realized by a
layperson. Readers are also encouraged
to consult with their own lawyers to obtain guidance concerning their
problems
when they first arise.
Readers are cautioned that
these answers are not intended
to be the basis for any action or reliance by the reader.
You are welcome to
visit our web site at “www.dumanlaw.com”.
© 2005, Fred M. Duman All Rights Reserved. Please see our disclaimer.
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