Tuesday, November 26, 2013

California AB 1404: Neighbors and adjoining landowners must now share the cost of fencing...

Have you ever heard the expression that "good fences make good neighbors"? Well thanks to California Assembly Bill 1404, starting January 1, 2014, good neighbors will now legally have to share the expense of good fences.

The legislation makes the assumption that adjoining property owners share an equal benefit from any fence dividing their properties, and unless otherwise agreed to in writing, are  equally responsible for the reasonable costs of construction, maintenance, or replacement of the fence. So if one neighbor decides repair, build, etc. a fence, there is a process to notify the neighbors. A property owner must give each affected adjoining owner a 30-day prior written notice of any intent to incur costs for a division fence. The notice must include the following:

  1. A notice of the presumption of equal responsibility for the reasonable costs of construction, maintenance, or necessary replacement of the fence; 
  2. A description of the nature of the problem with the shared fence; 
  3. The proposed solution for the problem; 
  4. The estimated construction or maintenance costs to address the problem; 
  5. The proposed cost sharing approach; and
  6. The proposed timeline for addressing the problem.
Sounds reasonable, right? So if you have a house and the fence is in need of being rebuilt, just send your neighbor a letter with all of that info. Building a regular 6-foot pine or redwood fence with 4x4 posts and 2x4 rails? Sounds like what typical fences are made of in the Sacramento area...BUT, what if your neighbor wants to build an expensive masonry wall with a mural that's 10x the cost of a regular wood fence, and they want you to pay half??

An adjoining property owner can dispute the assumptions mentioned above by demonstrating by a imposing equal responsibility for that kind of fence would be unjust. To determine whether equal responsibility for the reasonable costs would be unjust, a court will consider the following:

  1. Whether the financial burden on one property owner is substantially disproportionate to the benefit conferred upon that property owner by the fence;
  2. Whether the costs of the fence would exceed the difference in the value of the property before and after its installation;
  3. Whether the financial burden to one property owner would impose an undue financial hardship given that party's financial circumstances as demonstrated by reasonable proof;
  4. The reasonableness of a particular construction or maintenance project, including the extent to which the costs appear to be unnecessary, excessive, or the result of one landowner's personal aesthetic, architectural, or other preferences, and;
  5. Any other equitable factors appropriate under the circumstances. 
There are some exclusions to this law -- it does not apply to a city, county, political subdivision, public body, or public agency.  This new law is known as California Civil Code section 841.

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