08 September, 2012

A Neighbor’s Obligation to Pay for a Fence

All too often disputes arise between owners directly adjacent to one another regarding the cost of replacing an old fence.
Almost all fences are considered fixtures because they are attached to the ground, as opposed to resting on its surface. Since most fences are fixtures, they can't necessarily be moved, added to, or dismantled by the owner anytime the owner wants to (because of building codes, recorded covenants, etc.).
Not surprisingly, most disputes between adjoining landowners concerning fences do involve fences that are on the boundary. Civil Code 841, which regulates these so-called "division fences," provides that "Coterminous owners are mutually bound equally 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."
Thus, neighbors have a mutual, equal duty to maintain fences that are located on the boundary between them, and neither one can alter or move the fence without the other's permission Thus adjoining owners need to agree on how to maintain or to erect and maintain the common fence. This agreement is not required to be in writing.  An oral agreement of this kind is binding upon the parties and such of their successors in title as have notice or when recognized and acted upon by the participating parties until repudiated.

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