Fence Repairs

Question:

The fence between me and my neighbor is in need of repair. Who is responsible to pay for the fence? Also, my neighbor’s trees are causing the fence to buckle because the tree limbs and roots are pushing on the fence. I think my neighbor should pay to fix that, but they won’t. What should I do?

Answer:

Sometimes, a fence is placed entirely on one person’s property – meaning a boundary line exists that separates your property from your neighbor’s. If the fence is entirely placed on your property (just inside the boundary line), then the fence is wholly your responsibility, and you can do with it as you please. Same if the fence is on your neighbor’s side of the boundary line. In some cases, where neighbors cannot resolve differences, you will see two fences back to back! That is a bit silly, of course, and in most cases a single fence will be sitting right on the boundary line – one fence that sits exactly along the line dividing the property. Assuming this is your fence situation, you would refer to the California Good Neighbor Fence Act. That Act presumes that neighbors will be jointly responsible for maintaining, repairing, and replacing the fence. The Act sets out general guidelines for standard fence height/structure, and typically neighbors would jointly elect a fence company, choose any stylistic options (like stain color), and split the bill. We recommend that even when things are very friendly that all parties write up a simple agreement, signed by the neighbors, that specifies the price and details. Just so everyone is on the same page before the work begins. If one neighbor refuses to respond, you may need to utilize a private mediator or a small claims court to prompt that neighbor to agree to and pay for their portion of the fence obligation.

Things change a bit if one neighbor is actively harming the fence. In that case, you have an argument that they should be responsible for the cost of the fence replacement and repair. Trees pushing against the fence is a good argument for this. But be careful when it comes to trees – while your neighbor has an obligation to keep their trees maintained and is responsible for any damage caused by overhanging limbs and roots, there are strict consequences for neighbors who take matters into their own hands and cause tree damage. So, if a limb is hanging over onto your side, you would be within your rights to trim that limb back a bit so it is not on your property – IF you can do so without damaging the tree. If you harm the tree, you can be responsible for up to triple damages for the harm. Same with roots – be cautious hacking away at protruding roots, lest you cause tree damage.

If you live in a neighborhood with an HOA, that is a good resource to utilize to assist with neighbor boundary and tree disputes. Otherwise, a letter to your neighbor putting them on notice of the problem and demanding they fix it (the limbs, roots, fence damage, etc.) is a good first step. Keep the tone friendly at first, and escalate if needed. An attorney can assist you with that type of demand letter, along with a written agreement with your neighbor if a resolution can be reached. If they refuse to respond, however, then your next best choice will probably be to file a small claims suit against them for property damage. Small claims court is designed for individuals (in fact, attorneys aren’t allowed – you must represent yourself in court, though you can hire an attorney to help you behind the scenes with advice and paperwork). Your County Superior Court website should have all the forms and instructions you need to get started.

If the property damage at issue is more than the small claims jurisdictional amount (usually $10,000), then you should call an attorney to ask about assistance with a general civil court lawsuit. It is best, if possible, to address damage and repair issues right away if possible so that the damage amount does not reach that high a level. In the event of a catastrophic disaster that causes a lot of damage quickly (a windstorm knocks their tree into the fence/your house, etc.) then you should consider involving insurance. Even if they are not open to making a claim, a call to your insurance provider is wise, as they may be able to assist you with legal services to demand payment from your neighbor/your neighbor’s insurance company.