WHOSE FENCE IS IT?

From time to time, we will print enlightening articles by others on topics of interest to property owners and land use practitioners. This is from a nice little real estate newsletter out of Oakland. The writer kindly interviewed me following a reading of the Blog.

Enjoy:

Whose Fence Is It?
By Bruce Linde

Copyright 2006 The Grubb Co (www.grubbco.com). All rights reserved. Reprinted with permission.

The news is rife with stories of border disputes and their ramifications. You might be tempted to say ‘not in my backyard,’ but you might find you have your own border war if you don’t know exactly where your property lines are.

Americans spend more than $1.6 billion per year on fences. California Civil Code §841.2 requires that “coterminous owners are mutually bound equally to maintain the fences between them”… but it’s not that simple. According to Nolo Press’ Fences FAQ, “Unless the property owners agree otherwise, fences on a boundary line belong to both owners when both are using the fence. Both owners are responsible for keeping the fence in good repair, and neither may remove it without the other’s permission.”

It is defining boundary lines that is the sticking point. Boundary-line issues can be readily identified if a buyer obtains a survey of the property before the purchase, but many buyers are unwilling to do so because of the cost ($800 to $1,500 or more). “If a fence is truly on the property line, it’s a shared fence,” says Attorney Dotty LeMieux. “We all assume the fence is the property line, but that isn’t always the case. The only way to know for sure is to do a survey.” Besides showing property lines, a survey will also show the location of pools, decks, fences and anything else that has been added to the property… including structures built without the required permits (and inspections) that regulate their size, height, and location. To further highlight the complexities of this issue, an arbitrator in Berkeley recently ruled that although a homeowner’s land had moved, a survey determined ownership – and several feet of disputed earth now belonged to the downhill neighbor; there is no state law specifically designed to address property-line disputes where the ground is slowly moving, impacting property lines.

Nevertheless, if the deed or plat (map) of your property is confusing, you and your neighbor can simply agree that a fence – existing, or one you build – marks the boundary. This is called an “agreed boundary,” and certain requirements must be met: the line must be uncertain, both neighbors must agree that the fence is the line, and both neighbors must then treat the fence as the property boundary for a period of time. Once these requirements are fulfilled, the fence becomes the legal boundary line on the ground. Such an agreement should be in writing and recorded with the county in case there are any future questions about the boundary.

Even without an explicit agreement, when two neighbors treat a fence as a boundary fence for a long period of time – for example, if both contribute to its maintenance for many years – it can become the legal boundary. A fence on an agreed boundary is subject to all the laws that affect any boundary fence; when one of the properties is sold, the fence remains the boundary, and the new landowner buys mutual ownership of it along with the property.

So what happens when neighbors can’t agree? Good neighbors communicate, resolving problems to their mutual benefit without resort to the legal system. Mediation is also an option. Your first step, though, should be to talk to your neighbor, share perspectives, and see if you can come up with an equitable solution. The bottom line, according to LeMieux, is that “it’s best to be on good terms with your neighbors, and know where your property lines are.”

Please call with comments or questions about this article, or for referrals to qualified surveyors and fencing contractors. Thanks to Dotty LeMieux, who can be reached at coastlaw@earthlink.net.

Boundary Trees Revisited

Tina writes:


You say "both share the cost of its upkeep or liability for its lack of upkeep, in proportion to how much of the trunk is on whose side of the line", but the 2006 edition of Nolo's _Neighbor Law_ says that in California the tree is %50 your neighbor's, even if only a little bit of the trunk is on his property. If the tree was originally only on your property, then the trunk grew to where it was also on your neighbor's property, your neighbor becomes co-owner.

So I'm a little confused here--proportional, or 50%?

Curious (and yes, I do have a tree problem),
Tina

Dear Tina,

Well, as in the law generally, there are two (or more) sides to every issue. The law is ambiguous, so the sides are fuzzy too, like a shaggy barked Eucalyptus. I hope it's not a Eucalyptus coming between you and your neighbor. There are no hard and fast rules. You are both responsible, true, and neither can remove or damage the tree without permission of the other. You may however, trim the branches on your side of the line, so long as you do not damage the structural integrity of the tree.

The reason these problems are not so commonly written about today is 1) most of these issues came up in the days when farmers planted windbreaks to protect the crops along their boundary lines and 2) many people today use the services of a trained mediator to resolve disputes.

That is what I would suggest if you are having a problem with a boundary tree. Your town or County may have a mediation service for just such disputes. If not, you and the neighbor need to agree to hire someone and split the costs.

I wish you good luck with your tree and if you need further advice, consult your local Bar Association for the name of a good tree lawyer in your area.

Dotty LeMieux