Legal Question in Real Estate Law in California

Re: Common fence maintenance

First of all, you can not place a lien on anyone's property without first getting a court judgment. The exception is if you are a workman hired by the owner and he does not pay you, you might qualify for a mechanic's lien. Secondly, the general law does not require the neighbor to pay for the replacement. On whose property is the fence. If it is on yours,you probably can not do anything to force the other person to pay for work on yor property. Third, your CC&R's control unless they are contrary to the general law. Check what the document states exactly. If the fence is both of your responsibility, perhaps you can get your home owners association to write a letter saying that the fence needs to be replaced or the association will do it and bill you both.

Re: Common fence maintenance

The general law on boundary fences is Civil Code section 841, enacted in 1872 and not amended since. It asusmes we all live on farms and ranches, some of which are used for growing crops and some for grazing animals. It basically says that if and when an owner decides to enclose his property with fencing, he must share the cost of building and maintaining the portion of the fence which runs along his boundary with a neighbor, but that so long as an owner does not completely enclose his property, he need not share in the cost of fence installation or maintenance.

If rigidly applied in an urban setting, this old law would require a neighbor to participate in fence costs only if his own property was fenced on all four sides (of a rectangular lot), including the street side. Many people want fences along the rear and sides of their property, but not the street side, so the effect of the old law is pretty erratic, and perhaps should be amended to correspond with 21st Century realities.

In a neighborhood or development where both neighbors are governed by the same CC&Rs, whether imposed by law or by private agreement, it's very likely there will be some language pertaining to fences; that's where you should look. The CC&Rs may also provide an enforcement mechanism which could involve what amounts to a "lien," but you as the individual property owner cannot go to the county recorder's office and file some paper that purports to be a lien. The California Constitution provides for mechanic's liens, but the right to file one is strictly limited and it's 99.9% likely you would not qualify.