Legal Question in Real Estate Law in California

Re: Common Fence Damage

The renters are primarily responsible if they personally caused the damage. I suppose it is possible that the landlord is also responsibile though I know of no facts in your case which would cause me to believe he is.

Re: Common Fence Damage

I have a different take on your question. I believe that the landlord is primarily responsible to you, although the renters are ultimately responsible to the landlord.

Re: Common Fence Damage

Since the owners of adjoining properties often have a duty "jointly to maintain" the fences between them, I believe a suit against either the landlord/owner or the tenant could be proper and successful in getting you a judgment. The owner/landlord would probably have a legal claim, in turn, against the tenant for being the actual cause of the harm.

The property owners' duties to maintain the fences are set out in Civil Code section 841(1). This law was passed in 1872 and hasn't ever been amended to modernize it, and since the duty to maintain is conditioned upon the owner's decision to fence in his entire parcel, there is some question in my mind as to how this ancient law is properly construed and enforced in the 21st Century where most properties are urban or semi-urban in nature. So, maybe it is better to say that if there is a duty at all to contribute to fixing the fence, it is the property owner's duty.

There is also another theory that is totally independent of the Civil Code section, which is that the landlord is liable to neighbors for the torts of his tenants. I think this theory is generally UNTRUE but it might be applied if the damage done by the tenant was both foreseeable and controllable by the landlord. There are a few cases holding landlords liable for attacks by tenants' vicious dogs, for example. I could not find any case, pro or con, on your specific situation (fence damage by a tenant).

In any event, if a suit needs to be filed in small claims or otherwise, I would include both the landlord and the tenant as defendants.