Legal Question in Real Estate Law in California

Re: sharing fence cost

If the fence is actually on the boundary line, you are probably liable for half the cost.

Even without input ten months ago, the law doesn't become flexible. You should have discussed this with neighbor at the time of moving in, and noticing the fence being built. My opinion is that your silence assented to the fence, and the cost.

CC 841 does not leave much room for wiggling out of the situation.

If you can't negotiate the cost to be shared, retain an attorney to write a letter demanding reasonable costs from the neighbor. If he doesn't agree, take him to Small Claims Court.

Re: sharing fence cost

Civil Code section 841 was enacted in 1872 and hasn't been amended since. Have you read it? Although it leaves much to the imagination, especially in modern urban settings where it fails to address, among other things, the distinction between basic and fancy fences, it makes the duty to share the cost dependent upon your choice to inclose your property or not.

The legislative idea in 1872 was that if Farmer X wanted to fence in his property because he wanted to keep livestock in or out, his neighbor Farmer Y would be entitled to get back half the cost of the portion of the fence lying on the common boundary, but if Farmer X didn't fence in his land, he didn't have to make any contribution to Y's fence.

So, the question then becomes, is your property enclosed with fences (or walls, hedges or something that is functionally equivalent to a fence)? If so, 841 dictates that you share the cost. If not, you have no duty to share the cost.

At least, that's my interpretation of CC 841. There aren't a whole lot of cases interpreting it.

Keep in mind that there might be local ordinances or neighborhood CC&Rs that would come into play and produce a different result.

Re: sharing fence cost

More facts are necessary to make a determination of the approach you should adopt. The more aggressive approach is to deny his request, arguing, among other things, that (1) he didn't seek your consent, (2) had he sought consent, you would have insisted upon a different type of fense, and (3) the fence is not the functional equivalent of a boundary fence as within the contemplation of civ code 841.

Civil code 841 was enacted well over a century ago during a time when much property was agrarian. I suspect the intent behind the law may be worthwhile for the court to consider (if it gets that far).

I don't know how much is at stake. If under $7500, you can probably let your neighbor roll the dice at Small Claims. If more substantial dollars are at issue, it makes sense to get a real estate litigator on board sooner as opposed to later, to set this up correctly.