Legal Question in Real Estate Law in California

California's law on the subject of boundary fences is very old, dating back to the original adoption of the Civil Code in 1872, and is unsuitable for 2011 where boundary fence disputes are usually between neighbors in cities instead of between a rancher trying to grow a crop and another rnacher trying to raise livestock. See Civil Code section 841. I have asked the Law Review Commission to consider recommending amending the law to the legislature, but their response was basically "no one else seems to be concerned about it."

Anyway, the law says if a neighbor fully encloses his own property, he must pay half of the cost to construct and maintain any fence on a boundary. Apparently, enclosing your property with fencing was an indication that fence was of value to you. If you left part of your parcel open, however, that meant you didn't derive any benefit, and therefore you were excused from participation in the cost of a boundary fence.

Despite the law, my sense is that it is usual for neighbors to share the cost of boundary fences, but that there are many arguments over cost and design issues, whether repairs are vitally necessary or whether the work can wait another year, etc.

If your neighbor's property is entirely enclosed by fence, or some combination of fence, walls, hedges, buildings, etc., then you can rely on CC 841 and tell him he has a statutory responsibility to pay half the cost of fence repairs on the common boundary. Otherwise, there is no state-law statutory responsibility, only tradition. However, you should also inquire about local ordinances, CC&Rs;, etc. that might impose joint responsibility.

Back when most fences were two strands of barbed wire, the test of need for repair was whether the fence kept the cows in (or out). Nowadays, agreement on the need for repairs and the design of the fence is often hard to reach.