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Boundaries and Neighbor Fences in Los Angeles Real Estate Litigation

Boundary Lawsuits Are Common in Los Angeles

Neighbors fighting neighbors usually comes down to disputes over boundaries, fences and trees. Otherwise friendly neighbors and friends can transform into die hard enemies over boundary issues. Often these disputes will end in a lawsuit and protracted litigation. Real estate litigation attorneys who handle boundary and fence cases must be experienced in not only the specific laws in California that deal with these disputes but also in the resolution of these lawsuits.

The Good Neighbor Fence Act of 2013

In 2013 California’s Legislature enacted Civil Code section 841, which is also known as the “Good Neighbor Fence Act of 2013”. The main intent of the statute is set forth in the very first section: “Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.”

Neighbors Are Equally Responsible For Boundary Fences

In other words neighbors “shall be presumed to be equally responsible for the reasonable costs of construction, maintenance, or necessary replacement of the fence” between their properties. The law explains that neighbors are presumed to share an equal benefit from any fence dividing their properties. Notably, while the law calls for equal responsibility, the parties themselves may alter this arrangement through a written agreement.

30-Day Notice to Adjoining Landowner

California’s fence law requires that where a neighbor intends to incur costs for a boundary fence, the neighbor shall give 30 days’ prior written notice to each affected adjoining landowner. That notice shall give notice of the “presumption of equal responsibility for the reasonable costs of construction, maintenance, or necessary replacement of the fence.”

The Problem With The Fence

The Notice must include 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, and the proposed timeline for getting the problem addressed.

Can I Fight The Presumption?

The law states that the presumption of equal responsibility may be overcome by a preponderance of the evidence demonstrating that imposing equal responsibility for the reasonable costs of construction, maintenance, or necessary replacement of the fence would be unjust.  In addition the law sets forth various factors that a court can take into account in making this determination. These factors include the following:

    1. “Whether the financial burden to one landowner is substantially disproportionate to the benefit conferred upon that landowner by the fence in question.” Unfortunately, the law does not give any examples or give any more guidance on how this is to be determined. A foreseeable situation covered by this factor could be where an unsightly fence is in plain sight of one neighbor’s living room but up hill or downhill and out of sight for the other neighbor. The out of sight neighbor may be happy with a chain link fence while the other neighbor may want a more slightly wrought-iron fence or block wall.
    2. “Whether the cost of the fence would exceed the difference in the value of the real property before and after its installation.” Again the law provides not examples or additional guidance on this factor. Moreover, this factor seems prone to pure speculation, especially in higher value areas of Los Angeles. The value of a home in Pacific Palisades or Brentwood is unlikely to be affected by the type of fence between the properties. Instead, if this were fought in court, the trial attorneys would likely have to hire appraisers to opine on property values with little or no actual information to help them make a decision as to the change in value. This “battle of the experts” is expensive and, even then, not determinative.
    3. “Whether the financial burden to one landowner would impose an undue financial hardship given that party’s financial circumstances as demonstrated by reasonable proof.” Although your neighbors may live in a multi-million dollar house, they may be retirees living on a set pension who bought the house in 1960 for $50,000. In other words, while they may be land wealthy, they could be cash poor. Of course this would leave the other neighbor in an unfair position.
    4. The reasonableness of a particular construction or maintenance project, including all of the following:
      1. “The extent to which the costs of the project appear to be unnecessary or excessive.” This factor would appear to be the one most commonly relied on. Unfortunately this simply appears to be left to the Judge’s discretion and the law itself does not elaborate on what is “unnecessary or excessive.”
      2. “The extent to which the costs of the project appear to be the result of the landowner’s personal aesthetic, architectural, or other preferences.”

      When is it necessary to tear down a block wall that has been in place for decades? When does a simple chain link fence need to be replaced? The decision to replace or upgrade a boundary fence or wall will more than likely arise when one neighbor is making improvements to their property and want their landscaping and boundary fences to reflect the improvements they are making to the rest of the property. Does this qualify as a reason for the other neighbor to agree to the upgrade or replacement?

    5. “Any other equitable factors appropriate under the circumstances.”

    Court Can Order A Less Than Equal Share

    If after going through the factors above the court determines that a neighbor has rebutted the presumption, the court may order either a contribution of a less than equal share for the costs of construction, maintenance or necessary replacement of the fence, or order no contribution at all.

    Is Litigation With Your Neighbor Worth It?

    The first question that any real estate litigation attorney in Los Angeles should pose to you if you face this situation is:  Is a lawsuit worth it?

    Because the Good Neighbor Fence Act only came into being in 2013 there are no appellate court cases which address its application to any particular fact patterns. Without any precedent there is very little additional information that will give you an idea of how a lawsuit would turn out.

    But the first consideration is whether a lawsuit and the cost of a litigation attorney would exceed the proportionate cost of the fence or wall. Real estate litigation in Los Angeles is very costly and an experienced lawyer will cost a substantial sum. Depending on what the dispute is, a party must undertake a cost-benefit analysis to determine whether a protracted lawsuit is worth it. It is likely that the cost of litigation would exceed the requested contribution almost from the very beginning of the case.

    Another consideration that falls under this question is time. Lawsuits in the Los Angeles Superior Court can take from a year to two years to fully resolve themselves if the case goes to trial.

    Practical Considerations To Neighbor Fence Disputes

    For the neighbor who is being asked by another neighbor to contribute, the neighbor may simply refuse. The law does not set forth any penalties for the neighbor who refuses to contribute. The law does not contain any allocation of attorneys’ fees in the event the dispute goes to court. This means that each side will have to bear their own attorneys’ fees.

    For the neighbor who is asking a neighbor to contribute, it is highly probable that it would make sense to just pay for the whole fence if the neighbor refuses.

    Many boundary disputes arise when the fence is not actually on the boundary. The law does not address a situation where the fence is not actually on the boundary but the neighbor mistakenly believes that it is the boundary. Would the court consider a fence 6 inches off the boundary to be a boundary fence under the Good Fence Act?

    Real Estate Attorney Advice To The Homeowner

    As an attorney who specializes in real estate litigation in Los Angeles and neighboring courts, I have seen numerous boundary and fence disputes. Like all cases in the Los Angeles Superior Court, most neighbor lawsuits eventually settle. However, with the emotion that comes with neighbor lawsuits, oftentimes the parties need to litigate and incur attorneys’ fees for at least a few months before they are more willing to sit down and discuss a settlement. The most important factor to analyze right up front is the cost of the fight versus the cost of the fence.

    Los Angeles real estate attorney Laine T. Wagenseller is the founder of Wagenseller Law Firm in downtown Los Angeles.  Wagenseller Law Firm specializes in real estate lawsuits, including neighbor-on-neighbor lawsuits. For more information please call (213) 286-0371 or visit www.wagensellerlaw.com.

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