Amended in Assembly April 30, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1404

Introduced by Committee on Judiciary (Wieckowski (Chair), Alejo, Chau, Dickinson, Garcia, Muratsuchi, and Stone)

March 12, 2013

An act to repeal and add Section 841 of the Civil Code, relating to real property.

LEGISLATIVE COUNSEL’S DIGEST

AB 1404, as amended, Committee on Judiciary. Real property: boundaries.

Existing law defines the rights and obligations of owners of real property. Under existing law, coterminous owners are equally bound to maintain the boundaries between their properties. Existing law further requires coterminous owners to maintain fences between their properties, except as specified.

This bill would begin insert , end insert instead begin insert , end insert require begin delete adjacent end delete begin insert adjoining end insert landowners to share equally begin insert , with certain exceptions, end insert the responsibility for maintaining the boundaries and monuments between them. The bill would establish a presumption that begin delete adjacent end delete begin insert adjoining end insert landowners share an equal benefit from any fence dividing their properties and, absent a begin delete lawful end delete begin insert written end insert agreement to the contrary, are equally responsible for the reasonable costs for the fence, as specified.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert This act shall be known, and may be cited, as the
Good Neighbor Fence Act of 2013. end insert

begin delete SECTION 1. end delete
begin insert SEC. 2. end insert   

Section 841 of the Civil Code is repealed.

begin delete SEC. 2. end delete
begin insert SEC. 3. end insert   

Section 841 is added to the Civil Code, to read:

841.  

(a)  begin delete Adjacent end delete begin insert Adjoining end insert landowners shall share equally
in the responsibility for maintaining the boundaries and monuments
between them.

(b)  begin delete Adjacent end delete begin insert (1) end insert begin insert   end insert begin insert Adjoining end insert landowners are presumed to share
an equal benefit from any fence dividing their properties and,
begin delete absent a lawful agreement to the contrary, end delete begin insert unless otherwise agreed
to by the parties in a written agreement, end insert shall be presumed to be
equally responsible for the reasonable costs of construction,
maintenance, begin delete and end delete begin insert or end insert necessary replacement of the fence.

begin insert

(2) Where a landowner intends to incur costs for a fence
described in paragraph (1), the landowner shall give 30 days’
prior written notice to each affected adjoining landowner. The
notice shall include notification of the presumption of equal
responsibility for the reasonable costs of construction,
maintenance, or necessary replacement of the fence. The notice
shall 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.

end insert begin insert

(3) The presumption in paragraph (1) 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 determining whether equal responsibility for the
reasonable costs would be unjust, the court shall consider all of
the following:

end insert begin insert

(A) Whether the financial burden to one landowner is
substantially disproportionate to the benefit conferred upon that
landowner by the fence in question.

end insert begin insert

(B) Whether the cost of the fence would exceed the difference
in the value of the real property before and after its installation.

end insert begin insert

(C) Whether the financial burden to one landowner would
impose an undue financial hardship given that party’s financial
circumstances as demonstrated by reasonable proof.

end insert begin insert

(D) The reasonableness of a particular construction or
maintenance project, including all of the following:

end insert begin insert

(i) The extent to which the costs of the project appear to be
unnecessary or excessive.

end insert begin insert

(ii) The extent to which the costs of the project appear to be the
result of the landowner’s personal aesthetic, architectural, or other
preferences.

end insert begin insert

(E) Any other equitable factors appropriate under the
circumstances.

end insert begin insert

(4) Where a party rebuts the presumption in paragraph (1) by
a preponderance of the evidence, 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.

end insert begin insert

(c) For the purposes of this section, the following terms have
the following meanings:

end insert begin insert

(1) “Landowner” means a private person or entity that lawfully
holds any possessory interest in real property, and does not include
a city, city and county, district, public corporation, or other
political subdivision, public body, or public agency.

end insert begin insert

(2) “Adjoining” means contiguous to or in contact with.

end insert