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    Fence Laws in California Explained

    Fence Laws in California Explained

    Inspired by the book Neighborhood Law by Emily Doskow and Lina Guillen, we decided to dig deeper into California laws pertaining to fences. We wanted to answer homeowners’ most frequently asked questions regarding property boundaries and sharing a fence with neighbors. Here’s what we learned.

    California Fence Laws

    Fence ordinances in California are determined primarily by the city and county in most urban and suburban areas. To understand the laws in your local community, we recommend reaching out to your city or county government directly. You can expect such ordinances to set out detailed restrictions on the following topics:

    • Maximum fence heights
    • Setback requirements
    • Prohibited materials
    • Appearance
    • Disrepair
    • Dangerous fences

    In California, laws associated with fences not only outline the obligations of fence ownership but also explain what constitutes a “spite fence,” or a fence that is built maliciously with the intent of annoying, injuring, or spiting an adjoining owner. Let’s take a closer look at some of these obligations.

    Obligations of Fence Ownership

    Section 841 of the California Civil Code – also known as the Good Neighbor Fence Act of 2013 – clearly defines the responsibility of fence ownership among adjoining neighbors.

    “Adjoining landowners are presumed to share an equal benefit from any fence dividing their properties and, unless otherwise agreed to by the parties in a written agreement, shall be presumed to be equally responsible for the reasonable costs of construction, maintenance, or necessary replacement of the fence.”

    If a cost is incurred by the construction or maintenance of a fence, the landowner taking action must give 30 days prior written notice to all affected adjoining landowners. The notice must include the following:

    • A description of the nature of the problem facing the shared fence.
    • The proposed solution for addressing the problem.
    • The estimated construction or maintenance costs involved to address the problem.
    • The proposed cost-sharing approach.
    • The proposed timeline for addressing the problem.

    Landowners who find the proposal unjust or who wish to decline the agreement must be prepared to present their case in court.

    Section 841 states the following:

    “ … in determining whether equal responsibility for the reasonable costs would be unjust, the court shall consider all of the following:

    • Whether the financial burden to one landowner is substantially disproportionate to the benefit conferred upon that landowner by the fence in question.
    • Whether the cost of the fence would exceed the difference in the value of the real property before and after its installation.
    • Whether the financial burden to one landowner would impose an undue financial hardship given that party’s financial circumstances as demonstrated by reasonable proof.
    • The reasonableness of a particular construction or maintenance project, including all of the following:
      • The extent to which the costs of the project appear to be unnecessary or excessive.
      • The extent to which the costs of the project appear to be the result of the landowner’s personal aesthetic, architectural, or other preferences.
    • Any other equitable factors appropriate under the circumstances.”

    It is then up to the court to determine how much the neighbor must contribute: “… the court shall, in its discretion, consistent with the party’s circumstances, order either a contribution of less than an equal share for the costs of construction, maintenance, or necessary replacement of the fence, or order no contribution.”

    Spite Fences

    In addition to detailing the obligations of fence ownership, Section 841 explains the concept of “spite fences.” In some instances, neighbors may build a fence in spite of another neighbor – these are known as spite fences.

    In California, spite fence law is covered under Section 841.4, which states: “Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance.”

    Issues related to spite fences are often resolved through outside intervention. 

    Taking Your Neighbor to Court

    First, we recommend talking to your neighbor or even considering mediation to resolve the problem. Heading to small claims court should always be your last resort in a spite fence case. Sometimes, however, you have no choice but to go to court.

    If you plan on taking your neighbor to court, according to Doskow and Guillen, you should be prepared to prove your case.

    “If you sue based on your state’s spite fence statute, you must prove the fence is

    • over the height limit set out in the statute,
    • built to annoy you, the neighbor (maliciously built), and
    • serving no reasonable purpose for the owner.”

    “If you want money from the neighbor, you must also show that you are harmed by the fence, the nature of your harm, and how much money it would take to compensate you for it.”

    Compensation can be considered if any of the following conditions are met:

    • You experience deprivation of light and air.
    • Your utility bills go up.
    • You experience loss of rental income.
    • Your property value has diminished.
    • The fence causes an annoyance.
    • You incur any other out-of-pocket expenses.

    In some instances, a neighbor’s offending fence may not violate any state statute, local fence law, or subdivision restriction. However, you can still sue the owner under common law (written decisions in court cases).

    “The legal theory is that the fence is a nuisance – an unreasonable interference with another’s ability to enjoy [the] property. … If you sue based on common law, the fence must be

    • built to annoy you, the neighbor (maliciously built),
    • serving no reasonable purpose for the owner, and
    • harming the neighbor.”

    As twentieth-century American poet Robert Frost wrote, “Good fences make good neighbors.” You can be a “good neighbor” by understanding fence law. In many California cities and counties, neighbors share the legal responsibility and cost of building and maintaining fences. A “good fence” both represents and supports the fundamental equality of neighbors, while protecting the separateness and independence of each.

    A “bad fence,” on the other hand, might disproportionately protect one neighbor against the other, resulting in either perceived or real inequality. The maintenance of “good fences” is, therefore, part of responsible citizenship and helps to maintain the fabric of our communities.

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