Tuesday, July 25, 2006


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.


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.


Anonymous said...

so, if a previous homeowner intstalled a section of fence on neighbors property - identified by a survey - and the neighbor is going to have it removed to put up a new fence on the property line, is the new owner of the property responsible for the cost of removing the fence? Or the neighbor who is removing it to put up hius new fence?

Dotty LeMieux said...

Did the new owner buy without knowing whee the property line was? If so, she may have an action against the former owner or seller; unless it was easily detectable by reference to existing documents. Did the neighbor have the survey done?

It is likely the two will have to pay shared expenses, unless the neighbor wants to take control of they fence and keep it on his property.

It may depend some on the jurisdiction you are in, so check with the local laws. I don't know what State (or County/City) you are in. I am not licensed to practice law anywhere but California. So check with a local attorney, if you cannot resolve things between the two of you.

Good luck.

Luis said...

What if a homeowner built a new section of fence without consulting the other family.

Dotty LeMieux said...

Of course they should consult you, but without knowing more about this, it's impossible to respond accurately. Is the fence shared? Is there an agreement for maintenance? Is the fence actually on the boundry line, or one one or the other of the properties?

Do you mind that they replaced a section?

Anonymous said...

What if one homeowner wants the fence reinstalled but he/she wants the best materials and wont settle for others, yet the other owner doesn't want to agree to the best and/or extra materials. Would both people need to agree to what they actually want or can afford? Would more then one estimate be a smart decision to make? This IS a shared fence and this is in California.

Dotty LeMieux said...

Again, without knowing the particulars, I can't give specific advice. How was the sharing of the fence established? are you certain it's on the property line? When built and who built it originally? Do you have a survey of the property?

If you are interested in pursuing this further, I suggest you consult a local land use attorney in your area. You may check with your local Bar Association for a referral, or even the Yellow Pages may help.

Best of luck.

Andrea & Jordan Wise said...


Dotty LeMieux said...

You don't say which state you are in. Are you sure it is a shard fence? is it on the property line? Only a survey can tell for sure.

Is this such a big deal, their rg on the fence or is something else going on?

If it is truly shared, both parties responsible for taking care of it.

I can't really give legal advice on the Blog, just general guidelines.

If there is more going on, a property dispute say, consult with a land use attorney in your area.



nsadiq5 said...

Thanks for the good reading. I am in dispute with neighbor regarding fence. We bought the house and fence was there which they now claim is theirs. On the Survery Report, it shows that the fence is about 28cm on our property. But there is no real way to tell whose fence was that. How should I handle this situation, you think?


Dotty LeMieux said...

Is this a recorded survey? did the neighbors mistakenly think it was their property? who built the fence? all relevant questions you need answers to. Do they have a survey showing the fence is on their property? If so, it may be a cse of dueling surveyors. I would suggest you and the neighbor agree to go to mediation over it, maybe have a joint fence maintenance agreement.

It doesn't sound like a lot of land in dispute here.

I don't know what State you are in, but I am licensed only in California, so my comments are just comments, not to be construed as legal advice.

Best to you.

Terri said...

I purchase a lot in Santa Clara County Calif. The didn't realize the fence is overlap onto my property about 2.5 ft until my surveyor informed me. The neighbor has live there since 2003 and the house was built in 2000. I'm suspecting that the fence was put out after the new construction in 2000. I tried to communicate in a civilize way but they just refused to acknowledge even i gave them prove. What are the steps I need before I go into expense lawsuit? It sounded like even if my surveyor is correct, they are not willing to move the fence unless the City tells them or through court. I call the city and they don't deal with this. Any advise?

Anonymous said...

Hello -

We have had a survey done recently that shows the fence at the top of our sloped backyard is about 2 feet inside our property line. We'd like to build a new fence on the true property line. The fence may have slid downhill, as there is movement, and the fence has been there for years, but the uphill neighbors recently bought the house. We are in California. Thanks.

Dotty LeMieux said...


trex said...

My 91 year old mother lives in Redding, CA. In February of this year rear neighbor without a land survey decided to build a 6 foot high wood fence across the back of their property between the properties which is 149 feet wide. There was no discussion with my mom about a fence, height, material, etc. The fence is an eyesore since what my mom looks at is the back of the fence like posts, stringers and boards. We consider it a spite fence since there has been some problems with these neighbors. Through a legal land surveyor we discovered that the cement base for 10 of 18 fence posts are on my mom's property by as much as 5 inches, and the fence installers damaged beyond repair my mom's existing 5 foot wire fence when the wood fence was built. This meant that they trespassed when the wood fence was built. Is there civil code we can quote to have something done about the fence like moving it off of my mom's property?

Dotty LeMieux said...

Is it worth fighting over 5 inches? Try mediation, so you can get a better covering on the fence, since it is on the property line. Or ask if they will pay for some nice vines.

If they just move it 5 inches, it will still be ugly, sounds like.

I would not call it a spite fence. 6 foot fences are generally legal. You might consult the local zoning ordinances, in case they need a permit. Or if you are in a planned unit development, the cc and r's.

Good luck.

Anonymous said...

We just bought a house and our neighbor took the opportunity to report a code violation on our garage studio. We are now faced with a long, expensive process of getting it it permitted as well as taking out the shower and kitchen. We are upset because the neighbor could have come to talk to us first. The survey we had done when we were buying the house shows his fence is over the property line (on our side) by a few inches. If we want to make a big deal over this, what are our options? We are going after the builder/seller, too, but we want to make sure this neighbor doesn't get a pass for something that he didn't allow us to get a pass on. I know it sounds spiteful, and that is exactly what it is.

Dotty LeMieux said...

You don't say what State what you are in, and I am not licensed to practice law in any other State but California. Generally, you can go after the realtor as well for non-disclosure, if they did not tell you about these issues.

As for suing the neighbor over a few inches, it could well be costly and what will you gain? Have you discussed geting retroactive permits for the construction from the Town or City where you live?

Good luck.

Unhappy with Lattice said...

I have a question and hope this is the proper question forum. California, Los Angeles County. Bought house 10 years ago. It has original brick wall from 1940's builder, before both my neighbor and I moved in. I did a survey and made the mistake of telling her the wall was an inch or two on her property. Now after ten years she has put an ugly lattice on top so I can't trim my trees. I have offered to make it higher it with the same brick materials. She says no and it's her fence now. Yes, she's disagreeable, but I don't care. MY QUESTION IS-- is this a shared fence so I can attach a more attractive lattice on my side? I won't hurt hers. Yes I really want to.

Dotty LeMieux said...

If she hasn't asked you to move the fence, or given you permission to keep it there, you MAY have acquired a prescriptive easement. However, such an easement is not supposed to interfere with the real owner's use of their property.

You could argue to her that it is a shared fence since you both thought it was on the property line and have treated it as such. It may have become an "agreed boundary." If she is so disagreeable, she may object and fight you over your adding a lattice to your side, but you could give it a try and see what happens.

It is impossible for me to give you legal advice on this blog; I am just making some suggestions. I do consult with people out of my area, if you'd like to go further with this.

Let me know.

Thanks for reading Land Use News.

Good luck.

Anonymous said...

Our neighbors just modified our shared fence by adding plywood all around their property line with 1/4 of it being on our shared property and
3 rail horse fence. It looks horrible and we were not consulted. Some of the plywood actually hangs down into my horse corral. The neighbors refuse to take it down. What is the law in California?Do they need to get our permission to add to/change a shared fence/ They also planted shrubs within 5 feet of the line. Is this legal? Thanks,erin

Dotty LeMieux said...

Hello, and thanks for reading Land Use News. Generally speaking if it is truly a shard fence, you must jointly participate in the upkeep. Have you had a survey and are you sure it is on the property line, not his side?

As for the shrubs, it may depend on kind, height, purpose of planting, do they encroach on your property?

where are you located?

Tricia said...

I purchased a house in San Pedro, Ca over 6 months ago. There is a 4' wall with a 4' fence on top between our property and the neighbors. The fence was built over 20 years ago and is now falling down. THe wood on top of the wall is completely rotted. Boards are falling off and the support posts are beginning to give way. Since the fence is 4" off the ground, I am concerned from a safety stand point. The neighbors have a huge dog, 5 rabbits and children that are frequently playing in the backyard. I fear that the fence might give way and hurt someone or damage property.

We talked with the neighbors about the fence. Unfortunately, the property is a rental owned by an older woman. We have spoken with her numerous times and she does not want to contribute to putting up a new fence. She was advised by her lawyer to send up a check for 500. A simple fence should cost between 3000 to 3500. We feel since the fence is between the two properties that the burden of the costs should be shared.

At this point what do you suggest we do? I was going to get estimates, take pictures and send her the quotes. From a legal stand point is there anyway to force her to put up more money or put a lien on her property so we can collect in the future? Are there rental laws regarding safety? I would appreciate any advice that you can give me.
Thanks so much,

Dotty LeMieux said...

You need to be sure the fence is on the line, not over n one side or the other. If jointly owned, both are responsible.

Usually, there are height restrictions to 6 feet for fences. Check with your town and then see if there s a variance on record for this one. I take it you want the fence that high?

Then, get your estimates and send to the other owner. As for rental units, they need to be "habitable." If this is a danger, the renter would notify the owner, maybe the City, but then you are opening up the whole inspection issue, so be sure that's what you want to do.

Anonymous said...

we purchased our home 2 yrs ago and our shared fence has been here since the homes were first built in 2000. The fence is in bad shape and our neighbors behind us came to us to see if it was ok for them to have a new one put in, and could we share in the costs. We were in the process of having a refi done but agreed to (help) with costs. THEY didnt want to do the work ourselves she wanted a high priced contractor to do it and the cost to us would be over 1300. we paid 500.00 and right after that my husband had 5 eye surgerys and a total hip replacement and has now been out of work over a year. We dont have extra money for a fence we didnt need but they were adament about the replacement. Are they able to take us to court over this?? (riverside co. ca

Dotty LeMieux said...

I assume you have talked to them during this period? If they spent $1300 and you paid $500, you only owe them $150 or so, right. Why would they take you to court over so little money, or am I missing something?

Anonymous said...

Bulldozers showed up one morning in my father's yard and took out his fence - no prior communication from the neighbor. This was the original fence built with the house - flat land, no earth shifting. A few days later a surveyor came and put up stakes several inches into my father's property. Then the neighbor himself moved the stakes another 12 inches into my father's property. My father documented everything with pictures. The neighbor then put up a new fence which even included a turn around a couple of our large oak trees that were now in the way. You can still see the 18" off-set against the back fence. Needless to say my dad was not happy throughout this process, conversations weren't congenial and the neighbor wasn't budging. My dad doesn't have the money to throw at this problem but I'd hate to see 5-year squatter's easement rights start to apply. Is there anything we can do to indicate we are not in agreement with this fence placement to leave room to settle this legally in the future - especially if either property will go up for sale? This is in Palo Alto, CA. Any advice would be much appreciated!

Dotty LeMieux said...

Have you had your own survey done? That's the first step. It may be the property line is not where you thought it was. If the neighbor changed the actual boundary however, you need to have it clearly documented by a licensed surveyor and have the survey recorded.

Then, get him to move his fence to his side of the line. Often a letter from a lawyer can help with this once the official survey is done.

Anonymous said...

Can you tell me how close I am able to build a fence between my lot and my neighbor's property line? If I build a fence about a foot away from the property line (we've just had the lots surveyed and we know exactly where the boundary line is) is that still too close? Also, part of this fence will come close the the neighbor's house/window. Is there a law that says how close I can build a fence to my neighbor's house? I live in Sonoma County CA. Thanks!

Anonymous said...

We had a survey done in 2006 prior to building a new house in Marin County, CA. (replacing old cottage) so we know exactly where the property boundaries are. We had a 3 foot rather flimsy wire fence (just tied to our trees) along the east side of our FRONT yard to keep the 3 small children of east side neighbor out of our front yard, which it did. We have no permanent fencing of our front yard and our BACK yard is mostly enclosed by fence but partly by an old garage. The neighbor sold in Summer 2010 and the new neighbor didn't like the look of our flimsy wire fence and asked us to put up 6foot tall reed fencing to screen our forest-look front yard from his, all grass lawn, front yard. To be good neighbors, we did put up three (6' by 16') sections of reed fencing, again just attaching it to our 3 foot wire fence and our trees and vegetation). But my husband told him then, and several times since, that the best solution would be for him to build his own fence on his own property as the reed fencing weathers quickly and we wouldn't replace it or maintain it. In March 2012, the neighbor applied to Marin County DA Mediation process to say he wanted to build new fence and asking us to tear down our side yard and back yard fence which is very close to but not on the property boundary, so he could extend his fence all the way from his front gate (about 12 feet back from the front sidewalk) to the back fence which belongs to his back neighbor. We responded that no our fencing was only put up in July 2009 and is in good condition and we like it, but that we encouraged him to build his own fence, on his OWN PROPERTY, and NOT on the property boundary.

Last month, Sat. June 16th, lots of wood and some workmen with a very loud gas-powered post hold digger show up and start installing post holes & posts. My husband goes over to make sure this new fence (we had no notice whatsoever it was going to go up) was on the neighbors property (again pointing out the property boundary survey maker which this neighbor has repeatedly ignored (tresspassing and doing petty vandalism on our vegetation both real and faux, our trees, etc.)The neighbor starts yelling and being very abusize so my husband calls the Sheriff - deputy comes out and says he cannot do anything about the trespassing (some of the fence posts are partially on our property) as it's a "Civil" matter.
So we don't want to sue and make the neighbor tear down this new fence, but we don't want to be held responsible for any of it's cost or maintenance, as we fear we might given CA Civil Code 841. My husband had a real estate attorney write a letter to this neighbor (delivered June 28th) stating that we would prefer to let him leave his fence up, but that we want him to sign an agreement that we are NOT responsible (in perpetuity) for any of it's cost or maintenance.
Since we do NOT currently have our front yard "fully enclosed" and don't intend to do so, does that protect us from neighbor coming after us for his fence cost or maintenance (since he put it right on the property line with posts partially over the line on our property)? What if in future we put up a partial fence along our front yard screening us from the sidewalk, but leave our driveway ungated and a few feet of front yard unfenced, does that make us safe from this neighbor coming after us for cost and/or maintenance of this fence he built over our objections?
So far he is refusing to sign any agreement and we're not really happy about paying $325/hour for real estate attorney.
By the way the neighbor left a ~40" gap between his newly built fence and our side yard fence so that he can freely trespass onto our property (which he does regularly, breaking branches of our trees and shrubs which aren't anywhere near his fence). When we've called the Sheriff about his trespassing and petty vandalism (several times since Feb. 2012) they refuse to take any action, as they say it's a "Civil" matter.

Anonymous said...


We have lived in our house in Stockton, California for over 10 years now & several years back we needed to replace the fence that encloses our backyard because of dry rot & general wear/deterioration. We paid to have a new fence built (& in some places rebuilt) & painted white, which was the color of the fence we replaced & was in line with the architecture of our house.

A house just next door to us, that had been in the same family who had built it many years ago, (probably in the 1930's) was recently purchased by a non family member & the new owners began extensive renovations (at least on the outside). They did a very nice job with their front yard landscaping. exterior paint, lighting, etc., but a few days ago they painted the side of our white fence, which borders their front yard, tan. Not only did they do this without speaking to us about it (we have in fact never met them yet), we now have a two tone fence that looks horrible.

We have not yet clarified where exactly the property line begins & ends, but it does appear this wooden portion of the fence is on our property, while the brick wall that continues from this fence to separate our enclosed backyards, is most definitely part of the architectural design related to their house & likely delineates their property line. We live in a very nice area of town with older homes that are each filled with individualized character & architecture & I can't find a situation where the fence that encloses a yard is painted a different color to match the home which faces it at their front.

Aside from the fact that they were inconsiderate & arrogant by not even speaking with us about painting the fence, does the fact that we have paid for the fence & maintained it ourselves for over ten years give us any rights to the color, should it not be completely within our property line? ( we'll be going over the maps this week to see what we can determine).

The new owner is supposedly a high powered attorney in town & before we speak with them about our disappointment we want to have an understanding of our potential rights, the things we need to be looking for to determine who has jurisdiction over the fence. Maybe they /(the attorney) knows something about the property line we don't now. Maybe they're just being bullies. Maybe both or not, but it would be good to have some idea about the possible answers to these questions ... If it is owned jointly do they have the right to determine the color when the fence is clearly related to the architecture & color pallet of our home & has been maintained as such by us for many years (& likely the owners before us & before them, etc)?

Your insight would be greatly appreciated !

Dotty LeMieux said...

First you need to know where your property line is. If the fence is right on it, it is considered a property line fence and jointly controlled by both parties. If it's on your property, they have trespassed.

I'd speak to them first before resorting to tougher action. But know where the property line is. Also if there are ccr's at play, they may determine what can be done with fences and other color schemes.

M.S. said...

The shared fence in our backyard has sunk into the ground and now stands 5ft 4in tall. Our neighbor is over 6 ft and can easily see into our home. The fence is rotted on the bottom, boards are warped and loose and now the neighbors dog has chewed a hole in the fence. They are refusing to pay half of the fence replacement cost saying their side is not rotted or sunk. Is there anything we can do? I live in Ventura County, Ca.

Dotty LeMieux said...

Are you certain the fence is on the property line? That needs to be determined first; then explain to the neighbor that he is responsible for half the upkeep. Show pictures of the rot and sinkage. Does he look over the fence? What is the height limitation for fences in your area. Six feet is common.

Ask him to mediate with a local mediation service, but I wouldn't spend more on getting him to comply than it would cost you to simply fix the fence yourself.

Petunia 100 said...

I live in California (Stanislaus County). My home is approximately 8 ft. from my neighbor's home. We have a shared fence between us.

Lately, it has come to my attention that the homeowner's adult son (lives with her) likes to lurk about on his side of the fence listening in our bedroom and bathroom windows. I would like to discourage this practice by adding a foot of lattice to the top of our 7 ft fence, then covering my side with outdoor fence mesh.

Background: I paid for our shared fence. (Old fence was 20+ years old, rotten, and falling apart.) The neighbor refused to pay towards replacing the fence. I sued her in small claims court and lost. The commissioner said I could not use California Civil Code Section 841 to force her to pay towards replacing a fence she did not want to replace. (We went to court in October 2012).

Her son is creepy and weird. He likes to poison animals (has poisoned 2 of mine as well as other neighborhood pets). I did call the police about this, but of course I could not prove he was the person who sprayed pesticide directly into my pets' face, even though he had threatened to do so, because I did not see it happen. So there were no charges. Both pets had emergency trips to the vet, one died and the other recovered.

He causes problems with all of his immediate neighbors, it is not just me.

My question is: do I need the other homeowner's permission to add lattice to the top of our shared fence? I know she will not give permission. She is completely uncooperative and hostile.

In the past, before I paid to replace the old fence, my adult nephew added 2 x 4s to the old fence, in an attempt to brace it up. The neighbor's son ripped out the braces and threw them into my yard.

My second question is: assuming I do add lattice, and assuming the son destroys it and throws it into my yard, do I have a legitimate complaint? Would he be within his rights to do so?

Dotty LeMieux said...

Your problem is not with the fence but with the son, if he is as you describe. He could be dangerous and a lattice top will not be effective against him.

You need to talk to an attorney about a restraining order, whether this is advisable in your situation.

You may have a self-help clinic in your county and I would start there.

Good luck.

Anonymous said...

My neighbor had a section of fence replaced. It was damaged by his palm tree that is growing in the fence line. he had a large gap left to accommodate the tree's root growth. when I boarded up the opening, he yelled at me, became verbally abusive. I do not want a large opening at the base of the tree, I do not want an opening between our two properties. what are my rights?

Dotty LeMieux said...

You do not say where you are located, and I am only licensed to practice law in California, but generally, the rule is if the fence is on the property line, it must be shared by both, and any repairs done by both parties. It sounds as if these palm roots may be growing into your yard, if that is the case, you may want to prevent that. But be careful not to damage his tree, if you take any action. Have a consulting arborist look at it first. Also, if the tree is growing on both sides of the property line, that is the trunk comes out of the ground on the line itself, you have a joint line tree as well. You would do well to get a survey and consult a local land use attorney as to your rights and responsibilities.

I'm not sure what kind of gap is in the fence, but you might want to see if you can just talk it over with the neighbor, especially if it somehow affects your use of the property, like dogs getting out or in, before actually going to an attorney.

Good luck..

Anonymous said...

I am located in Palo Alto, CA.

The tree is planted in the neighbors yard, the trunk girth is beginning to cross the property, probably less than 5% It is approximately 28" from my garage wall/foundation.

He is building the fence with a cutout to accommodate the root ball at the base of the tree, which is going to allow for animals, and wild animals to get through.

Anonymous said...

trying to work it out has led to the neighbor putting his hand on me in an unwanted/threatening way.

for a tree just touching the property line it is not considered a joint tree?

Dotty LeMieux said...

It could grow into a joint tree. If the fence is truly on the property line. Get a survey first; then consult a local land use attorney. An unwanted touching can be considered a battery. If it happens again, call the police. From all you say, and without knowing more, having seen your situation, he sounds volatile, so I'd call a lawyer, and get that survey, unless you have one, asap.

Mike Anderson said...

Hi Dotty,

We live in a relatively new (8 years old) community in Northern California and are having an issue with a fence a neighbor just put up. We came home one day to find a 6 foot wood fence in our side front yard which separates our two front porches and extends out towards the street approximately two feet past the front of our garage door. The fence connects to the existing backyard fence and extends straight out towards the street so it appears that it is right on the property line, as it extends in a straight line from our existing fence. The concrete used for the posts spills over approximately 6 inches onto our property.

The neighbor never talked to us about this fence and never requested access to our property. Not only is this an eyesore (that's the first thing we see when we look out our front window) but is also a safety concern as when we are on our front porch watching our children play, we are completely unable to see cars coming down the street. We decided that we would try and just live with it, and stain our side to match our existing backyard fence. We came home from vacation to see the entire fence, including our side had been painted to match the other neighbors house. The neighbor again trespassed onto our property to paint and also moved several items we had on our side next to the fence to try and improve the aesthetics. We now cant even stain the fence as we had planned because it's been painted. We called our local code enforcement (yuba county) and they said the only thing they can do is to have the neighbor take down the two foot section that extends past our driveway. Do we have any other recourse, especially considering the safety aspect?

Dotty LeMieux said...

Thank you for posting on Land Use News. If the fence is truly on the property line, it is the responsibility of both parties to maintain any fence; I would say that extends to building any fence. Both parties must agree, and he cannot come onto your property without permission to erect a fence that is truly on the property line.

Do you have a survey? If so, you need to show him that he has trespassed and that you have a right to be consulted. But if you don't have a survey, that's the first thing you need. It may be the property line is not where you think it is. Without an accurate survey, you will have a hard time proceeding. If you have the survey, I'd first try reasoning with him him, then you may have to try court action to get the fence removed. Once it is up, however, this is going to be much more difficult, so I'd seek a compromise, have him take down the part that blocks your view and repaint your side as you wish, at least. Perhaps he would agree to mediation.

Anonymous said...

i bought a house with a brick wall damage then for few month neighbors buy the house next to me now they paint there house with the wall brick but didnt fixed and the brick is damage almost falling the wallbrick is dividing us and when they paint the wallbrick i say that they paint a part of my because they paint were my front gate is holding the door of my entrance

Anonymous said...

Hi I'm in Sunnyvale, California. My neighbor and I share a dividing fence, where a portion of it (around 25') extends past his side gate, then encloses off my property. We want to replace the entire fence dividing our property, but he argues that he's not responsible for the portion past his gate. Is that true?

Carrie N said...

We are in San Diego. We just purchased a home and there is a newer fence that was installed by the previous owner and neighbor that cross the back of our property.
My husband went over to introduce himself, politely, and told then he wants to stain our side of the fence to protect the wood and match it to our side fences.
The neighbor is upset and says we can't do that. They want the wood to 'age naturally' and are insisting that if we stain our side it will 'warp their fence.'
It is a common boundary fence and I am upset that they think they have rights to tell us if we can match our backyard fences with staining. It seems, to me, that this is not in their power. Is it?
We are not asking them to do anything on their side. They are free to do what they like on their property.

Anonymous said...

A neighbor and I for a property I own had a verbal agreement to build a block wall dividing the two properties (6 feet from set-back to property rear and 4 foot with columns in front yard to set-back). In order to assist him, I paid the full amount up front and allowed him to make monthly payments for his share. However, he only paid up to 1/3 or his share and then refused to pay the rest.

Unfortunately, I waited too long as I attempted to sue him in small claims. The Statue of Limitations only allows recovery of costs on verbal agreements up to 2 years from date of breach. I missed it by 11 months. So judge ruled for the defendant due to Statute.

The neighbor added is own personal décor wooden fence between the columns on the wall dividing the front yards of our properties. This matches the color (dark brown) for the remaining fence that surrounds his property.

Considering the ruling of the judge to not allowing me to recuperate my losses, do I have a right to tear down his décor and add my own décor? I'd like the décor to match my metal gates (white).

If not, what steps would I need to take in order to get a favorable ruling.

This is in Los Angeles County.

Dotty LeMieux said...

Why would you want to since he saved you the trouble and cost of putting one up? I'd say live with it, and try to get along.

PS. Have you asked him to repay you? This may be his way of doing it.

Anonymous said...

A neighbor's tree was planted extremely close to our shared fence. Over the years, it has grown very large, shading about a quarter of my yard. I don't mind the shading, but the trunk and roots have destroyed a section of the fence, and the roots are tearing up about 10 feet of my garden border and lawn. The neighbor, who is trying to sell his house, is refusing to be reasonable. He claims he will cut down the tree and repair the fence. Cutting the tree down is not a simple process. I have asked to be advised of when he plans to do it and who will be doing it, since it will impact my property. All I get is "Do you want the tree cut down or not." He is apparently taking no action. Since his house is up for sale, is there something I can do to advise potential buyers that he is not disclosing this issue? I talked to his realtor, but she refuses to talk to me about it. I am in Southern California, and, unfortunately, my neighbor is a prominent attorney.

Dotty LeMieux said...

You will have to get your own prominent attorney, I guess.

Serioulsy, I'm not sure why this is a problem for you. If, in removing the tree, he damages your property, he or his insurance, will be responsible.

Anonymous said...

Hi Dotty,

My wife and I just bought a new home in a cul-de-sac in Southern California last year. Our house shares a long boundary with our neighbors who have lived there for a long time. The fence along our boundary consisted of two sections - one wood(about 75') and one iron (25') section that goes in a straight line until it takes a right turn near the left side of our driveway. The section on the right side of our driveway matches the iron fence to form sortof an entrance. Much of the wooden part was old and rotting and had fallen over so we replaced about 20 feet of it. Our attempts to contact the neighbors first were unsuccessful as they were apparently renting out the house but between tenants and they apparently did not find our note about fixing the fence. We had no other way to contact them.

Anyway, after we replaced the 20 foot section, we get a letter from the neighbors' lawyer (a brother in law apparently) stating we destroyed their fence because it was on their property (they didn't even attempt to contact us to work it out before lawyering up!) Apparently, the new part of the fence is aesthetically unpleasing to them. We had assumed the fence was on the line. There seems to be some ambiguity as to whether the wooden part of fence is on the line or how close it is to the line (it could just be the first post) but the iron section is definitely on their side about 18" until it makes a right turn over the back to our side by the left side of our driveway. One survey says it is partially on the line but another survey might barely be on their side. I guess it sorta depends on your point of view. Either way, it's really close and the prior owners told us it was a shared fence. The rest of our property is enclosed with fencing.

We are afraid of getting sued and want to compromise but the neighbor is taking it really personally and has some sort of vendetta against us. I think we both have a responsibility to maintain the fence, but the neighbor thinks we are trespassers even though we replaced the fallen down portion with something nicer than what was there and didn't ask for a dime from them. They're also claiming the iron fence is an encroachment and want it removed. I thought it is all part of the same fence. They don't want to move or put up a new fence on the line and it would cost way too much to move the iron part as there are trees more or less on the line where they would be.

seems our best defense is that we both have a duty to maintain the fence, but the neighbor says that law doesn't apply because it's their fence. what do we do?

Dotty LeMieux said...

You said there are conflicting surveys regarding where the true property line is. Are these surveys both recorded? Have you had the property surveyed? That's the only way to know for sure. In any event, keep all documentation that you have tried to contact them about the fence, that you actually improved what was there, and then when you have a true survey, ask for the compromise. I doubt they can get anywhere in court, as you have improved on the fence, and the other part is on their property (It could be the former owner built it there, do you know who built it?).

But without knowing more, seeing pictures, surveys, etc. I can't give you any more than general information on how to proceed.

Anonymous said...

Thanks for the response, Dotty,

Conflicting surveys mean they had one survey done showing the start of the fence (post) was on top of the boundary marker, but also did a detail sketch showing the wood part was just inside the line on their side supporting their claim the entire fence is on their side.

None of these surveys are recorded, they seem more informal, but the surveyor staked out where the line is, including under the post. We have no reason to believe the stakes are in the wrong spots as the survey company is very reputable.

However, they're saying they built the wood fence inside their property line so they own it even though it forms part of the enclosure of my land. Their lawyer said it is not a dividing fence because it is not on the line.

I guess my question really is that if the wood fence entirely is (even by an inch) on their side of the line does that mean they own it and we can't fix it even though it is an eyesore? Our property's previous owners have treated it as a shared fence for years, doesn't that count for anything? I don't think the law should be so rigid as to deny my legal rights on the basis of an inch.

I wish I could say these people would be reasonable if presented with a cogent argument, but all indications are that they want to go to court (they're already demanding their legal fees!). They've rejected our offer to build a new fence on the line and they insist we remove the iron fence, which will cost a bunch of money. It's like they get off on it or have nothing better to do.


Dotty LeMieux said...

It's not clear if you built the iron fence or they did. But your improvements to the their fence, and yes, IF it is on their property, it is their fence, they have been unjustly enriched, and I doubt they can get you to remove a fence better than their old fence. I hope you have pictures. But, before you do anything, get a survey of your own and have it recorded. Otherwise, it's all hearsay where the property line is.

kim S said...

I wanted to ask Dotty a question: I replaced the fence on one side of my house in 2000 and added shorter fence to side walk in 2003. Just FYI I told fence company to put fence on my property (not line) but not sure if that really happened. I have hired a survey company to confirm. The owner would not share the cost of fence so I paid for it all and I have the receipts. The house was sold 4 years ago and the new owner (this house is a rental) ask me about a year ago if she could paint the fence red (yes....red) and I said "no" and explained that I paid for the fence and it was mine. She painted the fence red on Monday. I am willing to pay for legal advise. One of my other neighbors said I should take her to small claim court and have her replace the fence since she defaced my property. I am open to legal advise and suggestions.

Dotty LeMieux said...

Hi Kim S. You don't say where you live, but I am only licensed to practice law in California. In any event, since it is a rental house, I'm not sure that you get to "own" improvements you make. You should get reimbursement from the property owner for the cost of the fence as you have improved their property. What does your lease say if anything about making physical improvements to the property?

If this doesn't help, you might seek out a local lawyer to ask for advise. Good luck.