Legal Question in Real Estate Law in California
Fence Replacement Cost
Hi, I own a property in San Francisco, so I have shared fence on both sides of my backyard. Just recently the owner of the next door neighbor has passed away and the house is on probate sale. Since the house has been occupied by tenants, the weeds and vines have been overgrown so many years to a point that they made the fence totally leaning to their side of the yard. Since the fence was leaning to the other side, it didn't bother me, so I left it alone. However, now that the house is on sale, someone was hired to clear up the vines, but ended up causing the fence to fall over completely. So I contacted the sales agent regarding the matter, and the response I received was that thee lawyer involved in the probate sale authorized to only pay 50% instead of paying for the entire cost to fix/replace the fence. They even said that they can technically leave the fence alone and not do anything, so paying for 50% is already doing me a favor. It is definitely not right, but I don't know what I can do. Any advise is greatly appreciated.
2 Answers from Attorneys
Re: Fence Replacement Cost
Can't advise if the exact location of the fence with respect to the property line is not known. Also, who put up the fence in the first place.
Frankly, to this legal eagle, I think the offer is "fair" and it is not worth fighting it further. One lawyer's opinion.
Re: Fence Replacement Cost
The law on this subject in California was part of the original Civil Code adopted in 1872 and has not been amended in the slightest since then. It basically divides fence-repair liability into two categories. Anyone who chooses to enclose his property with fence (or its equivalent, such as hedges or buildings) must pay 1/2 of the cost to build and maintain a boundary fence with a neighbor; but if that person does not choose to leave his property open, he needn't participate unless and until he changes his mind and encloses his land.
The law was intended for an earlier era when fences were used to keep in, or keep out, livestock, and not to delineate urban parcels.
Furthermore, the law gives no guidance as to what kind of fence for which the neighbor shall pay half the cost. Are we talking about two strands of barbed wire on five-foot tee posts, or a six-foot fence of dogeared old-growth redwood?
I have contacted the California Law Review Commission and suggested that this law (Civil Code section 841(2)) is due for rewriting. So far, no action.
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