Legal Question in Real Estate Law in California

Re: Encroachment by decaying fence

This is a really tough problem, because the laws (statutes) of California on boundary fences are archaic (from 1872) and deal with the problems of neighboring ranchers and whether or not each of them chooses to enclose his land with fencing, and not modern urban issues. Some principles have developed from case law (court decisions), but as few fence disputes make it as far as the Court of Appeal (and hence into the law books), there isn't much guidance.

One thing that's clear is that the law frowns on self-help. Don't enter the neighbor's yard, at least not excessively, and don't damage their landscaping.

You might try driving T-posts every 3-4 feet, or as necessary to correct the inward lean. You can stretch a cable between the posts.

If "engineering solutions" don't work, the alternative may be to file a simple suit for trespass and private nuisance. The trespass is the encrochment of the vegetation growing on the neighbor's property into your air space. The nuisance is the dilapidation that affects the value and enjoyment of your land. A court would probably order the neighbor to correct the problems at his expense and share the cost of a basic new fence 50-50. Pursuing such a suit through trial would be expensive, but for both of you, so very likely the neighbor would take a new attitiude toward a voluntary settlement once served with the suit.

In order to maximize your high ground in the matter, I suggest giving a couple weeks' advance notice that a suit is forthcoming. That might itself precipitate settlement negotiations.

Small claims is a possibility for your suit, but I think its inherent jurisdictional limits could preclude getting full relief.

Re: Encroachment by decaying fence

This is not an encroachment issue as much as it is a question of who has the obligation to maintain and repair a fence which sits on a joint boundary. The answer is both of you. Thus, generally speaking, neither of you can take steps to stop the other from taking reasonable steps to maintain or repair the fence.

If the neighbor is preventing you from doing this, you will have to seek a court order forcing her to cooperate (or in the alternative, preventing her from interfering) with you.

Consult a qualified real estate litigator familiar with boundary issues. We have extensive experience in such matters, and if you need a no charge consult, please call or email.

Good luck.

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