Legal Question in Real Estate Law in California
My wife and I bought a home through a real estate agency in 2004. At the time of purchase, the back yard had an existing "good neighbor" fence on three sides, along with a concrete pad that extended to the backyard fence line. We received a clear title through a local title company, and we closed escrow and took possession on 3/19/2004. I have paid property taxes on my property since 3/19/2004. Prior to close of escrow, we had requested (and had received) a home inspection, which was done by a Licensed Home Inspector, who submitted a written report with photographs. One of the deficiencies listed in the report was the condition of the backyard fence and fence posts (dry rot). Since we own a dog that we did not want escaping from our backyard, we wanted to repair the fence right away. We attempted to contact the nonresident owner of the home next door, hoping that he would share half the expenses of the materials to repair the fence since I was willing to make the repairs myself; however, he did not respond to any of my inquiries. We also attempted to contact him through the property management company that was handling the rental of the property next door, but they eventually told me that they could not force him to respond to us. Therefore, since the repairs had to be made (and I have construction experience) I went ahead and repaired the fence myself, at my cost. Because of the existing concrete pad in my backyard and a large equipment shed in the neighbor's backyard that he had constructed directly adjacent to the fence, it was impossible for me to move the fence in any direction, even had I wanted to do so. I dug out the old, rotted fence posts and replaced them with new posts in the exact same position and location. I then repaired the rotted sections of fence. Now, over five years later, I have recently been served with a Summons and Complaint for Damages and Permanent Injunction, filed by the owner of the property next door, claiming that without his consent or approval, I had constructed a fence on his property (solely), that the fence constituted trespass, and he is claiming damages of $5,000 and demanding that I restore the property to its prior condition. Restoring the fence to its prior condition cannot be done since the old fence was very rotten and was falling apart at the time my wife and I purchased the property. It literally came apart in pieces in my hands. Upon completion of the repairs, the debris was hauled away to the dump. The fence cannot be taken down because it must be maintained in accordance with our HOA rules and regulations. The property owner claims that he had the property surveyed after I completed repairs to the fence, and the report states that the fence is now on his property. I merely repaired the EXISTING fence (which had obviously been present for many years), replacing the rotten fence posts with new posts placed exactly where the old ones had stood and replacing the sections of fence containing massive dry rot with new sections of "good neighbor" fence exactly where they existed prior to our purchase of the property. I want to emphasize that I could not move the fence in any direction because of the existing concrete pad in my back yard (that had been present prior to purchase) and the next door neighbor's large tool shed that was constructed immediately adjacent to the fence. There are pictures of the existing fence in the home inspector's report. MY QUESTION IS THIS: DO I HAVE ANY LEGAL DEFENSE TO THIS PROPERTY OWNER'S CLAIMS, AND IF SO, WHAT?
2 Answers from Attorneys
Sure you do. But, you've been forced into a situation that you're going to have to spend money to defend and try to settle it. Consult a local litigation attorney and work with him.
This suit sounds quite ridiculous. Of course, you'll need to respond, probably by way of Answer but I wouldn't rule out a demurrer, or you'll lose by default. Further, knowing exactly what defenses to plead would require review of each of the causes of action alleged in the Complaint.
One general avenue of defense is that the plaintiff is factually wrong. Maybe the survey never took place, or maybe the results show something entirely different than the suit claims.
A second general approach is that you have a right to do what you did. This general line of attack could include arguments based on the HOA rules, plaintiff's failure to act, an easement for the fence in its traditional location, equitable principles, and so on.
A third general approach to defending this suit would be to argue the "Good Faith Improver of the Property of Another" law, Code of Civil Procedure sections 871.1 to 871.7. A "good faith improver" is defined as "a person who makes an improvement to land in good faith and in an erroneous belief, because of a mistake of law or fact, that he is the owner of the land", or a successor in interest of such a person. A claim under this law may need to be brought as a cross-complaint rather than as a defense.
Other comcepts may come up after review of the complaint, a site inspection, and further thought. The equitable principles covering relative hardships may come into play.
I'd be interested in representing you in defending this suit, and I see you're not too far away.
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