Legal Question in Real Estate Law in California

Re: Neighbors and fences

The Civil Code (section 841) provides: "Coterminous owners are mutually bound 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."

This is the ONLY statewide law on this topic; it was part of the original 1872 Civil Code and hasn't been amended since. As far as I can tell upon brief WestLaw research, there hasn't been an appellate case reported interpreting this statute since 1891. It was obviously written at a time when most people lived on farms and ranches and some fenced in animals and others fenced them out, while still others didn't care.

So, what the heck does it mean? What CC 841 has been held to mean, 100+ years ago, is that if X and Y are neighbors, and X's property is fully fenced in (either by actual fences or things that serve as fences such as buildings, hedges, cliffs and ravines, etc.), then X has to pay at least 1/2 the cost to build and maintain the boundary fence between X and Y; and vice-versa. On the other hand, a neighbor choosing for now NOT to enclose his property needn't participate in the cost of a boundary fence.

So, I guess the answer depends upon your neighbor's election to fence completely or not.

I think this is one of California's most in need of modernization laws, and there may be LOCAL ordinances in your community that supplement this, but statewide, that's the state of the law for now.