Legal Question in Real Estate Law in California

Re: common fence with neighbor

Maybe the reason it's free is that you can wait for days to get an inconclusive answer!

I just got back from a Holoday trip and I'll tell you what I know about this subject. The California law on boundary fences was written in 1872 and hasn't been amended since. The language and legal concepts embedded in the law (Civil Code 841) reflect the rural ranchlands nature of most of the state at that time. It says:

"Coterminous owners are mutually bound equally to maintain:

"1. The boundaries and monuments between them;

"2. The fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he afterwards incloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter."

So, when is property "inclosed" so as to require the owner to participate in fence repair costs? Is it sufficient for the lot to have a fence on two sides and at the rear, or must it also be fenced at the front? If there is a driveway opening, does that exempt the owner?

Not only is the law itself based on a livestock-vs.-no livestock kind of reasoning, there are no modern reported cases that I know of where a court of appeal has addressed the issue in a modern urban situation.

Under these circumstances, I would say the law must be read quite literally; i.e., if the neighbor's property is not 100% enclosed by some kind of barrier (fence, wall, hedge, etc. or some combination thereof, including gates at the driveway and sidewalk), then there is no basis upon which you can oblige a contribution.

I hasten to add two things: I do not know if this is the way a court would rule; and, the law should be amended to provide some guidance for modern urban homeowners.