Legal Question in Real Estate Law in California
Who owns a communal fence?
The communal fence was built jointly by both property owners 22 years ago. Now because of termite infestion four, 8 foot sections have fallen out of the fence,the neighbor repaired the fallen sections with 8 foot bamboo matts streached accross the opening.
The neighbor is now replacing the fence. I was not asked to join this construction in any manner. I feel this was because I told the neighbor, in the past, that I would not share the fencing cost until the Jackaranda tree had been removed. This tree grew up less than three feet from the property line. I requested permission to pay for the tree removal because of the twigs, leaves, and flowers that litter my property, and also fill my pool with trash year round. The request was refused. The old fence is falling, the new fence is constructed on their side of the property line..
MY QUESTION: (1) Although, we both shared in the cost of constructing the original fence, am I legally restrained from removing the old falling down fence without the neighbors consent? Does he still own 1/2 of the old fence, doesen't the his new fence represent his abandonment of the old fence?(2) Doesen't the neighbor also share the cost for the removal and disposal of the old fence?
1 Answer from Attorneys
Re: Who owns a communal fence?
There are both theoretical and practical answers for these neighbor fence and tree problems. You are either right or close to right on many of your suppositions. However, as a practical matter most small-claims judges expect neighbors to work out disputes of this kind without resorting to court, and are somewhat reluctant to hand anyone a clear-cut victory when negotiation attempts don't appear.
Also, the jacaranda issue and the fence issue are separate, and one cannot use inaction on the one to justify inaction or lack of cooperation on the other issue.
I suggest that if negotiations seem futile, ask the neighbor to submit the whole package of issues to out-of-court mediation or, if that fails or you want a final solution, binding arbitration. You can find mediators and arbitrators in the phone book.
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