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Carlsbad Homeowners, Whose Side of the Fence Are You On?

By
Real Estate Agent with eXp Realty of California, Inc. CA DRE #01490977

Carlsbad Homeowners

Whose Side of the Fence Are You On?

This post probably could be titled, alternatively, “whose fence is that?

Road Runner on our fence in CarlsbadI was reminded of the many issues that can arise with fences from a past client who bought one of my listings and just contacted me.

I thought some words of wisdom (I use that term loosely LOL) were in order.

Thinking about fences took me back a few years to real estate in New England where there are rural properties with a stone wall, rather than a fence, that had been in place for decades, or longer. I guess it’s a good thing they are harder to move if necessary.

I can’t tell you how many times I have been asked the question “whose fence is that?

It’s a risky question to answer unless you know, definitively, the answer.

And of course that question often becomes more elaborate – Is that a shared fence? Can we change it if we want? Who pays for the cost of that fence (e.g., in an HOA community). Do you need permission from the abutters to do anything with the fence? You get the picture.

Or the other common question…can we install a fence?

Whose fence IS that?Fences can convey all sorts of impressions – a friendly neighbor or owner, a not so friendly one, a neighbor or owner who could care less about the fence and how it looks.

And a fence may become a sort of battleground and result in legal proceedings where disputes arise: who actually owns the fence; is the fence encroaching on the neighbor’s yard; or is the fence on the adjoining property but you believe you own it.

Sometimes fences exist for years with no issues between the residents on either side, and then bang, a new owner moves in and the fence becomes a hot issue.

I’m not an attorney and can’t provide any legal advice. But if it is a legal question I recommend chatting with a real estate attorney.

Suffice it to say that determining the answers to these questions as part of your due diligence when buying a home is essential. The fence may be on the property line and clearly shared, or it may be one person’s responsibility. It might even be the prevue of the HOA. You probably want to know.

It is not unusual, at least in our area, for the HOA, if one exists, to have very specific details about the type of fencing that can be installed and even who pays for it. Indeed, that is the case with my past client, where the new owners next door have decided they want to change the fence. But it’s not theirs to decide.

So, Carlsbad home owners - whose fence IS that?

The answer may be more complex that at first glance.

Posted by

Jeff Dowler, CRS
Certified Residential Specialist / Realtor®


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Hella Mitschke Rothwell
(831) 626-4000 - Honolulu, HI
Hawaii & California Real Estate Broker

Jeff: Excellent post. The question that I also get a lot is "is that tree on this property" when there is a tree close to the property line and no fence. I always suggest a survey if there is any question about a property line. I NEVER answer that question.

Nov 19, 2013 02:00 PM
William Johnson
Retired - La Jolla, CA
Retired
Hi Jeff, Boy this is a great topic. I think there is maybe more uniform confusion on this than about any issue I can think of, besides lending guidelines, :-)
Nov 19, 2013 02:19 PM
Nancy Laswick
United Real Estate - Phoenix, AZ
Your REALTOR® For The Valley Of The Sun

Jeff, great post. This reminds me of a situation that arose with one of our neighbors shortly after we purchased our home many years ago. The dispute was settled but it definitely affected our relationship.

Nov 19, 2013 06:14 PM
Gita Bantwal
RE/MAX Centre Realtors - Warwick, PA
REALTOR,ABR,CRS,SRES,GRI - Bucks County & Philadel

I had a listing where there was a fence in the back belonging to the neighbors. Just before settlement the neighbors removed the fence because it was in bad shape. they were going to instal a new one.

 The buyers came to walk though and asked about the fence. I had to point out it did not belong to the sellers.

Nov 19, 2013 07:41 PM
Ginny Gorman
RI Real Estate Services ~ 401-529-7849~ RI Waterfront Real Estate - North Kingstown, RI
Homes for Sale in Southern RI and beyond

Oh Jeff, this is always one of my favorite topics and I can not tell you the number of listings I too have had that turned into fence issues (memorable one with the neighbor storming into a flat out busy open house to let everyone know the fence was in the wrong location!...it wasn't after a survey was done, the neighbor lost 3 feet!)...always good to suggest a survey.  Wish surveys were mandatory here.

Nov 19, 2013 08:00 PM
Nina Hollander, Broker
Coldwell Banker Realty - Charlotte, NC
Your Greater Charlotte Realtor

Oh, those pesky fences, Jeff! Here in Charlotte fences are typically put in a few inches inside the boundary line to avoid these problems. But in a much older property with multiple home owners, you just never know. I absolutely insist that all my buyers get a survey, especially if a property is fenced. I've found that there are fence boundary issues on at least 40-50% of those surveys.

Nov 19, 2013 08:28 PM
Bill and MaryAnn Wagner
Wagner Real Estate Group - Ocean City, NJ
Jersey Shore and South Jersey Real Estate
Jeff, What a great subject and issue for buyers to be fully aware. The importance of obtaining a survey, prior to closing, can't be stressed enough. We encounter encroachment issue or boundary disputes on probably 1 out of every 4 properties. We've actually had adjoining neighbors pull the new survey markers out and move them to a location more favorable to them. Better the seller has to address these issues prior to settlement, than our buyers being forced to deal with them later.
Nov 19, 2013 08:33 PM
Ed Silva, 203-206-0754
Mapleridge Realty, CT 203-206-0754 - Waterbury, CT
Central CT Real Estate Broker Serving all equally

Those pesky boundaries, and why don't we know the answers? It's usually easy when the sellers are still around, and even then you can get an 'I think', as the sellers just went with what ever was told to them.  For most people, the ugly side of the fence belongs to the owner, and if you need to paint the other side, ask the neighbor for permission

Nov 19, 2013 08:42 PM
Michael Setunsky
Woodbridge, VA
Your Commercial Real Estate Link to Northern VA

Jeff, a fence doesn't always determine the boundaries of the property. In this case a survey is a must.

Nov 19, 2013 08:50 PM
Richard Iarossi
Coldwell Banker Residential Brokerage - Crofton, MD
Crofton MD Real Estate, Annapolis MD Real Estate

Jeff,

I'm not even sure who the fence in my yard belongs to. It predated all the owners of the houses it touches.

Rich

Nov 19, 2013 09:26 PM
Noah Seidenberg
Coldwell Banker - Evanston, IL
Chicagoland and Suburbs (800) 858-7917

Jeff I have heard many fence stores over the years. It's a drag when neighbors fight.

Nov 19, 2013 10:12 PM
Richie Alan Naggar
people first...then business Ran Right Realty - Riverside, CA
agent & author

If it is not broken, don't fix it applies here...However, if it is broken, make sure one has a BIG peace pipe to smoke em with neighbor...

Nov 19, 2013 10:19 PM
Aaron Hofmann
Atlanta Communities - Smyrna, GA
aka Mr. Smyrna Vinings
Often buyers view a survey as an unneeded cost, but certainly is a prudent part of any due diligence period.
Nov 19, 2013 10:26 PM
Jeff Dowler, CRS
eXp Realty of California, Inc. - Carlsbad, CA
The Southern California Relocation Dude

Hella - yep, trees can be another issue, especially when there is no good sense of where the property line might be. And then those trees that hang over into someone else's yard!

William - you could be right. It certainly can create problems

Nancy - too bad. It's s shame when issues like this arise and cause problems. But I have heard some horror stories. And so often the problem does not arise for quite some time, or the situation regarding the placement of the fence is not at all what people were told or thought.

Jeff

Nov 19, 2013 11:09 PM
Connie Harvey
Pilkerton Realtors - Brentwood, TN
Realtor - Nashville TN Real Estate

Jeff, it's been a long time since I had to deal with a fence. But yes, it can get very tricky when problems and questions arise!

Nov 19, 2013 11:29 PM
Lottie Kendall
Compass - San Francisco, CA
Helping make your real estate dreams a reality

Fences, trees, tree roots, bamboo sending shoots into another yard -- tricky to answer questions.

Nov 20, 2013 12:10 AM
Mike Crosby
Mike Crosby Realty - Placentia, CA
Placentia- Yorba Linda Real Estate - 714-742-2897

 The idea of a shared fence does not sit well with some people.  They have the feeling "It is ay fence". 

Nov 20, 2013 02:19 AM
Jeff Dowler, CRS
eXp Realty of California, Inc. - Carlsbad, CA
The Southern California Relocation Dude

Gita - well that must have been a surprise at the walk through!

Ginny - better to be sure than make erroneous assumptions. It's worth the money

Nina - a wise precaution. No doubt there are many more fences that are not exactly where we think they are

Jeff

Nov 20, 2013 03:27 AM
Christine Donovan
Donovan Blatt Realty - Costa Mesa, CA
Broker/Attorney 714-319-9751 DRE01267479 - Costa M
Jeff - I think surveys are commonly done other places than they are here, and that might make it easier to figure out the fence issue.
Nov 20, 2013 02:32 PM
Bryan Robertson
Los Altos, CA

I just read something on this recently.  As I recall, a shared fence must be maintained by both parties.  Other than that, it's up to whoever has the land the fence is one.  No matter what the law says, it seems the neighbors argue when they see any possible loss of land, even if only a foot or two.

Nov 21, 2013 05:29 AM