Who is responsible for the construction, maintenance, and/or repair of a division or boundary fence?
You have just bought a new home and notice that the fence dividing your property from your neighbors is dilapidated and need of replacement. Assuming the fence is a division fence dividing your and your neighbor’s property, who is responsible for fixing it? Like many legal questions, the answer is, it depends.
The first question to ask is if there is a written agreement governing the use, maintenance, and construction of the fence. If the answer is yes, this is where you should look to determine the parties’ respective rights. To find out, you could start by asking the seller (who should be disclosing these things). Another option is to see if an agreement was recorded against your or your neighbor’s property. A title company should be able to help with that.
Barring a written agreement, pursuant to Code of Civil Procedure section 841, adjoining landowners are required to share equally in the responsibility for maintaining the boundaries and monuments between them. This is because adjoining landowners are presumed to share an equal benefit from any fence dividing their properties. As a result, both landowners will be presumed to be equally responsible for the reasonable costs of construction, maintenance, or necessary replacement of the fence.
There are, however, some limitations to this rule. First, where a landowner intends to incur costs for a fence, the landowner must give 30 days’ prior written notice to each affected adjoining landowner. Pursuant to statute, this notice must include specific information to comply with the requirements.
Second, the presumption that adjoining landowners will equally benefit may be overcome by demonstrating by showing equal responsibility for the reasonable costs would be unjust. To determine the same, the court will weigh the benefits against the burdens of the fence expense.
At Schorr Law, we are experienced in handling property line disputes and providing counsel on matters involving real property. To see if you qualify for a free 30-minute consultation regarding your matter, please contact us by phone, email, or send us a message through our contact form.
By Stephanie Goldstein, esq.