Legal Question in Real Estate Law in California

I have a neighbor that is unwilling to pay for their part of a property line fence, cal. civil code 841.

After months of trying to get them to talk about replacing the previous fence, which was dilapidated enough to require constant repairs to keep my dog in the yard, I got a few bids and informed them of the upcoming replacement of the fence. They claim the aren't capable to pay for the fence, but clearly have enough money to spend on some nice toys and the amount we are talking about is under $1K for their half.

I abated the private nuisance under cal. civil code 3501, informing them beforehand as needed under 3503. They did not object to the replacement, as they thought they were getting a "free fence". But under cal. civil codes 3519 and 3521, this act of improving the property values is their responsibility.

The neighbors have been non-responsive for years, I've asked for half of the fence replacement cost, recently I wrote a demand letter and suggested going to arbitration or mediation and warned of taking them to small claims court if they didn't meet a deadline. Nothing seems to work, am I left with taking them to small claims court to recover my costs for half of their fence costs or is there another way?


Asked on 9/30/11, 1:50 pm

2 Answers from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Civil Code section 841 is a relic of the original 1872 code, never amended since we were a largely agrarian society where most people built fences to keep farm animals in, or keep them out. Logically, the drafters wanted neighbors to share in the cost of a fence they were going to build anyway, so the cost-sharing was made dependent upon the neighbor being asked to contribute having fenced the rest of his property. So, if you go to court with a CC 841 theory, the judge will (or should) ask the defendant, "Is your property fully enclosed by fences, walls, hedges and buildings?" If his answer is yes, you win. If his answer is no, you lose.

Well, maybe it isn't quite so cut-and-dried. However, this is the clear implication of 841. There may be other factors affecting the outcome, such as local ordinances, your CC&Rs;, or maybe an impact of the private-nuisance statutes you cite.

I have suggested to the Law Review Commission that CC 841 needs modernizing. They didn't agree with me. However, thre is a lot of boundary-fence squabbling among neighbors and no clear statutory guidance, at least that makes sense in the cities of the 21st Century.

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Answered on 9/30/11, 4:49 pm

Be Mr. Whipple's informed history of the code what it may, the answer to your direct question is Small Claims is your only option if they will not cooperate in some other solution.

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Answered on 9/30/11, 10:55 pm


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