Legal Question in Real Estate Law in California

Re: Fence of property line

The California law on boundary fences is outdated (not amended since enacted in 1872) and does not adequately take into consideration modern-day urban situations. It covers farming situations where neighbors would either enclose their fields completely (to keep livestock in if they were grazing stock, or out if they were growing crops) or not at all. It basically says that if a property owner doesn't enclose his lands, then he doesn't have to contribute to the cost of the fence along the common boundary. This law, applied to your situation, would say that your neighbor wasn't obliged to pay any part of the six-foot block wall unless he fully enclosed his own property with walls, fences or something else that fulfilled the function of a fence (e.g., a hedge); but if he did, then or later, enclose his property, then he would have to pay 1/2 of the cost of building and maintaining the wall along the common boundary.

Not only does the 1872 statute (Civil Code section 841) not adequately address the modern reality that people may want fences on three sides of their property, but not all four, it says nothing about who gets to decide how tall, fancy or expensive the fence can be and still require a 1/2 outlay from the neighbor that didn't design it.

In your case, I would say:

(1) The present neighbor probably isn't obliged to share in the cost.

(2) Even if he is, you can't put a lien on his house without getting a judgment. (There is a remote possibility that you might at one time have been able to file a mechanic's lien.)

3. The new owners cannot remove the wall without your permission. Even if it is illegal under a local ordinance or a neighborhood CC&R (it's legal under state law), or even if it were mistakenly built on their property, the law does not allow a private party the right to abate the trespass or whatever by private action without a judgment or some kind of official order.