Since 1872, California law has provided that landowners are mutually bound to maintain shared monuments, fences and boundaries. In 2014, the legislature amended the California Civil Code section 841, commonly known as the “Good Neighbor Fence Act,” to provide much more guidance with regard to landowners’ responsibilities in constructing and maintaining common fences.
The current law provides “adjoining landowners are presumed to share an equal benefit from any fence dividing their properties and unless otherwise agreed to by the parties in a written agreement, shall be presumed to be equally responsible for the reasonable costs of construction, maintenance, or necessary replacement of the fence.” While the nature of the law is unchanged, and neighbors are to share the cost equally, the law further includes a much more formal process and procedure by requiring a 30 day notice to affected neighbors. Failure to adhere to the procedures of the new law could jeopardize landowners’ right to recover their share of the cost.
30 Day Notice
Civil Code Section 841b(2) requires that a party first send a notice to each affected neighbor 30 days before any “construction, maintenance, or necessary replacement” of a shared fence. The notice must include all of the following:
“a description of the nature of the problem facing the shared fence;
the proposed solution for addressing the problem;
the estimate construction or maintenance costs involved to address the problem;
the proposed cost sharing approach; and
the proposed timeline for getting the problem addressed.”
Although the new law is incredibly specific on the notice requirements, however, it does not address the consequences when a landowner fails to provide the required notice.
Of course, there is nothing in the law that says the landowners cannot negotiate an agreement to maintain common fences with neighbors, and generally, they should be able to work out fence problems without much involvement with the court.
Factors for Unjust Costs
However, there are situations where landowners do not equally benefit from a shared fence, and therefore the costs should not be shared equally. In determining whether equal responsibility for the reasonable cost would be unjust, the new law provides that the court consider the following:
(A) “Whether the financial burden to one landowner is substantially disproportionate to the benefit conferred upon that landowner by the fence in question.
(B) Whether the cost of the fence would exceed the difference in the value of the real property before and after its installation.
(C) Whether the financial burden to one landowner would impose an undue financial hardship given that party’s financial circumstances as demonstrated by reasonable proof.
(D) The reasonableness of a particular construction or maintenance project, including all of the following:
(i) The extent to which the costs of the project appear to be unnecessary or excessive.
(ii) The extent to which the costs of the project appear to be the result of the landowner’s personal aesthetic, architectural, or other preferences.
(E) Any other equitable factors appropriate under the circumstances.”
See Civil Code Section 841