Boundary fences are arguably the most common source of disagreement and dispute between neighboring property owners. California Civil Code §841.2 requires that “coterminous owners are mutually bound equally to maintain the fences between them”, and according to Nolo Press’ Fences and Neighbors FAQ, “Unless the property owners agree otherwise, fences on a boundary line belong to both owners when both are using the fence. Both owners are responsible for keeping the fence in good repair, and neither may remove it without the other’s permission.”
Not every fence separating two properties is a boundary fence however it is typical for neighboring property owners to assume a boundary fence exists and to mutually agree to a shared responsibility for maintaining the fence. If any doubt exists, confirmation of whether or not a shared fence lies on a boundary line can only be obtained through a survey of the property, which in many cases is not practical compared to the shared cost of repairing or replacing a fence. If it can be sufficiently proven that a fence is located entirely on the property of one owner it is the sole property of the person on whose land it lies. The adjoining neighbor is not responsible for the cost to build it or for its maintenance.
Determining who is responsible for a fence is a crucial first step in establishing a proactive approach to dealing with fence repair and maintenance issues. Confirm with the neighboring property owner – before you purchase if possible – their agreement to shared responsibility for the fence separating your property from theirs. Become familiar with local ordinances and zoning restrictions pertaining to fences; especially six foot height restrictions which are common in most municipalities. Examine your fences and boundary fences regularly; assessing the condition of the posts, pickets and other structural components. Do any posts need replacement? Are any pickets rotting, broken or missing? Should an entire section of fence be replaced? Any concerns should be discussed with the neighboring property owner as they come to light. Decide who will obtain estimates and how many estimates will be obtained. Determine what type of material will be used and confirm an agreed upon completion date. Clarify what portion of the expenses you are responsible for. Set aside funds periodically to cover anticipated fence repairs and maintenance. Planning ahead and creating an open line of communication with a neighboring property owner greatly reduces the potential for conflict and unnecessary expenses down the road. Don’t wait until it’s too late and the entire is fence laying in your yard.
Dealing with boundary fence issues on rental properties, in most cases, adds an additional layer of complexity to the process; especially when two or more neighboring properties are tenant occupied. Tenants often have their own opinions about the condition of a fence and what types of repairs are needed. You may encounter scheduling conflicts with your tenants or the tenants next door. The owner of the neighboring property may live out of the area making it more difficult to make decisions and reach an agreement.
If you are unable to make contact with an absent owner of a neighboring property regarding a fence issue, be prepared to send written correspondence referencing California Civil Code §841.2. Search public tax records and internet directories, or speak to the neighboring tenants to obtain the owner’s telephone number and mailing address. When sending written correspondence use certified mail and maintain copies of all your correspondence. If no response is made within a reasonable amount of time, send a second letter reiterating California Civil Code §841.2 and your intention to obtain at least two estimates for repairs. Send copies of your estimates with a third letter informing the owner of the neighboring property of your intention to proceed with estimated repairs. Upon completion of the work, send a fourth letter including a copy of the invoice and a request for payment. Consider small claims action as a last resort if it makes financial sense based on legal fees and your time compared to the cost of the repair.
The liability associated with damaged or crumbling fences on a rental property can be very significant; much more so when there are small children in the picture, when one of the properties in question harbors a potentially dangerous dog, or when a pool is located on one of the properties. Unsecure fences also increase a property’s exposure to trespassing, vandalism and potentially worse offenses from unwanted outsiders. In a high risk situation there should be an emphasis on mitigating any existing liability as quickly as possible, even if it means authorizing or completing repairs prior to obtaining approval from the owner of the neighboring property. The possibility of not recouping the neighbor’s share of the expense for repairs is well worth eliminating any existing risks and the potential for a lawsuit by repairing the fence yourself and dealing with the owner of the neighboring property later.
Rental property owners don’t enjoy the convenience of unlimited access to their properties, increasing the importance of evaluating the condition of fencing when your property becomes vacant, or at minimum, once per year. Addressing fence repairs while your property is vacant eliminates the need to coordinate with tenants for access to the property. When new tenants move in make sure you collect as much contact information as possible, including email addresses and multiple telephone numbers. Provide your tenants with your contact information and encourage them to contact you promptly if they notice any fencing issues. More often than not tenants are quick to request repairs to an unsecure or unsafe fence however you should be prepared to post appropriate legal notice to access the property if your tenants are less than accommodating. Your diligence towards maintaining and repairing fences surrounding your rental property will eliminate a lot of headaches and save you a lot of money in the long run.
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© 2011 Jason J Alves,
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