Legal Question in Real Estate Law in California

Re: If your neighbor pays for half the fence does he have the right to remove it

Civil Code section 841 sheds a little light on the question: "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 encloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter.

The statute was enacted in 1872 and has not been amended since, so it reflects the standards of a largely agrarian California.

I believe modern courts tend to extrapolate from the core concepts of the old law, adding elements of ordinary property and contract law as necessary, to resolve boundary fence disputes of this kind.

I would conclude that since you have a half interest in the boundary fence, if the neighbor tears it down without your consent, he is liable for half of the cost of replacing it. Arguably, he is responsible for more than that because the replacement (i.e., your half of the replacement cost) would be unnecessary if he had not torn it down.

I would further think that changing the fence without your knowledge or consent would be permissible if the result of the change is fairly characterized as a repair or improvement, but if it arguably makes it less attractive or less functional he may have exceeded his right to act.

Under the principle that 'two wrongs don't make a right,' I would advise caution and restraint before making unilateral changes myself. Try to negotiate or find a mediator.