Form-of-the-week: Notice of Intent to Alter Shared Boundary Fence – Form 323
Private owners of adjoining properties are presumed to benefit equally from boundary fences. Under this presumption, all adjoining owners are equally responsible for constructing, maintaining and replacing these fences. [Calif. Civil Code §841]
A boundary is any structure or monument between two adjoining parcels of land. Boundaries can be anything — a large tree trunk, ditch or improvement. Common boundaries include a:
- waterway;
- driveway; or
- manmade fence.
The typical shared fence is known as a boundary fence, commonly owned by adjacent property owners.
Disputes about who is responsible for the cost of erecting and maintaining boundary fences are frequent between adjoining owners. Unless specified by a written agreement between adjacent property owners, each owner is presumed to be equally responsible for the costs of construction, maintenance or replacement of a common boundary fence. [CC §841]
However, an exception to equally sharing the costs of maintaining a boundary fence exists when the costs are considered unreasonable. Costs are unreasonable if:
- the financial burden for one owner is substantially higher than the benefit of the fence to that owner;
- the cost of the fence exceeds the difference in value of any of the owners’ land before and after the fence’s installation;
- the construction or maintenance of the fence imposes an undue financial hardship given the owner’s financial circumstances; or
- the reasonableness of the construction or maintenance, in regards to the extent to which the costs are unnecessary or excessive or the costs are a result of the owner’s aesthetic or architectural preferences. [CC §841(b)(3)]
Related article:
Typically, when a boundary fence is in need of repair, replacement or maintenance, it is generally one owner who initiates contact with the adjacent neighbor calling for some remedial action. When more than one owner is responsible for a boundary fence, the owner who plans to construct, replace or maintain the fence is required to deliver a 30-day written notice to each affected adjoining property owner prior to commencement of any work. [CC §841(b)(2)]
Even if one property owner intends to pay for everything to be done to the fence, the 30-day written notice is used to provide details of the proposed repairs to the adjoining neighbors.
first tuesday’s Notice of Intent to Alter Shared Boundary Fence is a 30-day written notice defining each owner’s responsibility for sharing the cost of maintaining the boundary fence. [See first tuesday Form 323]
As required by state codes, first tuesday’s 30-day notice includes:
- a notification of the presumption of equal responsibility for the boundary fence;
- the location of the boundary fence;
- a description of the problem to be addressed;
- the proposed corrective action to be taken to solve the issue;
- the estimated cost of the corrective action;
- the proposed division of costs between property owners;
- the proposed timeline to address the problem ; and
- an invitation to discuss the corrective action proposed. [CC §841(b)(2); see first tuesday Form 323]
Neighbor messaged me about fence replacement, an evening before starting the job. I approached her and she stated as long as I disposed of the old fence wood, she would take care of the rest. I didn’t agree as I wanted to find out what it entails to dispose of treated wood here in my County / City. I did tell that I would consider it. She said I should do it because she won’t be charging me for labor in return so the least I could do is just arrange for for old fence wood disposal. Next day I am gone most of the day and I return and night, the fence has been torn apart, the old fence wood is piled up in my backyard. The whole night I heard digging and drilling till 2:00 AM. I got the ugly side of the fence. All the posts are on my side. She got her self a new gate. I still have the old gate. I feel like she did me dirty. Now she’s sending me text messages saying that I need to pay for labor and half the costs of the material. I didn’t agree to anything. I feel like she needed to get a land survey to see if she could dig in the places she could dig. I don’t know if any lines were marked. I don’t know if the fence is constructed properly. I thought she’s supposed to provide a notice of some sort, 30 days in advance. I had no say in what she did. I feel like if she did what she wanted to do and not include me in it, why should I pay not. She’s also going around and harassing me by hovering around my property and taking pictures of my vehicles and property. She makes commotion outside to get my attention. In my city you cannot work past 8 or 9 PM on Saturday she’s working till 2:00 AM. My wife is pregnant, my baby is coming in 6 days or less. This is causing a lot of stress for me and my wife. I don’t know if she pushed the fence over and took over my land slightly, since all the posts are on my side. Are there any encroachment rules? Am I obligated to pay if I wasn’t involved in any of the decisions? Is there a boundary survey involved? I don’t mind paying a portion of the materials, but this lady does what she wants and expects everyone to go with whatever she says. Not easy to talk to, lacks accountability morale and empathy. I am stressed out. Can I sue for nuisance? emotional distress? What relief I’m looking for is that she needs to leave me alone and I will pay for the old fence wood disposal. I still need to get myself a new gate. She hasn’t taken those expenses into consideration. Please help
I also feel she was being spiteful, she had the fence constructed this way (ugly side facing me) on purpose to annoy me. If that personal genuinely wanted costs split, she should have also replaced my gate. Asked if I needed help with old fence wood disposal. How can I pay for her inconsiderate decisions.
Hello,
Thank you for your inquiry. Unfortunately, we are unable to comment on the particulars of your specific fact situation. We recommend you to seek the guidance of a licensed professional. However, we do cover disputes between neighboring property owners and their obligations over a shared boundary fence in Chapters 9 and 10 of our Legal Aspects of Real Estate book, which you are able to download and view as a PDF. We hope this helps.
Best regards,
Editorial Staff
Owner is responsible for a boundary fence, the property Owner who plans to construct, replace or maintain the fence is to provide a 30-day written notice. Excellent explanation, it’s simple & focus.
I like the form, but it seems to go beyond what the statute requires. For example, the statute does not require identifying the location of the fence as part of the notice, and this seems more the case if there is an existing fence to guide locaction. Even if the existing fence does not extend along the entire property line, it would be normal to pull a string along the existing fence to the other boundary fence and place the new fence in-line with the previously existing fence. Is there some non-statutory legal basis to agree upon the location as part of the notice?
Thank you, I have been looking for a pre-formated form.
What if I do not agree to having a common boundary fence replaced, even when the other owner agrees to pay 100%
I would also like to know the answer to this question. Has anyone responded to this question?
Thank you for you inquiry!
While the governing statute (which can be found here) does not cover this specific situation, similar disputes are dealt with on a case by case basis. Typically, when the boundary is in a state of disrepair, both owners have an obligation to pay for the cost of repair — that obligation exists whether or not one owner offers to foot the entire bill.
For more information, check out this article: http://journalbeta.firsttuesday.us/good-fences-good-neighbors/34988/
Regards,
ft Editorial Staff
We just purchased a home and within a month of moving in, the neihhboring yard that was abandoned suddenly had the trees cut to the ground. The trees were so okd that the roots were on both sides and this caused our fence to come down with the tree as we are on the downhill side. The fence still sits on our now dead trees months later due to the fact that communicating with the owner only brings chaos. Instead of speaking like an adult, we get cursed at and threatened. There are now renters in place and we have zero privacy. The renters are also not fond of dogs and we have two that I gave to keep inside at all times unless we are able to go out with them. We aren’t sure how to proceed as communication is impossible. He owns many properties I have been told by other neighbors and does not want to “deal” with this issue. What suggestions may you offer?
Thank you kindly,
Frustrated
I have a comment regarding placement of wall. I amend your form to include language that both parties “agree and acknowledge that the wall will be placed on the property line and part of the wall and foundation will be lay on both properties. ” BUT your form was locked in. I wonder if this can added?
This is America not the USSR. If you want to build a fence, I have an idea build it on your OWN property and PAY FOR IT YOURSELF. Don’t expect handouts from your neighbors because “they benefit.” It’s your fence. You pay. If you unilaterally put something “on the boundary” then you can unilaterally pay for it. This is an totally Un-American law. I can’t believe it’s allowed; but then again it’s in California.
I appreciate your article; a concomitant issue is where an HOA common grounds is enclosed by perimeter walls and the CC&R’s allow the owner to use the interior of the wall; under this situation, the HOA is obligated to repair/replace the wall, and the owner has but a mere “license” to use the interior of the wall. Be sure to check the CC&R’s. In most instances the CC&R’s will delineate between common walls between shared walls with owners – in that case the owners are 50/50 obligated for replacement and repairs of any damage to the shared wall.
Mick,
Thank you for your inquiry.
Delivery of the notice is handled the same way other notices are to be delivered. It may be hand delivered or mailed. If there is a concern regarding receipt by the recipient, as may be the case with an absentee owner, certified mail may be used to confirm delivery.
Regarding liability, as with any construction occurring on a property, the contractor making repairs to the fence is covered for any injuries on the property through their workers’ compensation insurance.
Additional commentary regarding the adjacent fence owner’s response will be addressed in a future follow-up article. Stay tuned to the first tuesday journal for more information.
Thank you,
first tuesday Editorial Staff
Form is good, but perhaps the top to/from boxes can be switched to be on the same sides as the signature boxes at the bottom.
How is notice delivered? What happens if the form is ignored?
Whose liable if the contractor slips and breaks his neck fixing the fence?
GREAT TOOL.protects all owners.In a possible dispute over boundary lines this can allow the encumbered owner equal enjoyment of his property and cause the dominant owner to contribute his share.