Amended in Senate June 14, 2013

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, instead, require adjoining landowners to share equally, with certain exceptions, the responsibility for maintaining the boundaries and monuments between them. The bill would establish a begin insert rebuttable end insert presumption that adjoining landowners share an equal benefit from any fence dividing their properties and, absent a written 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:

SECTION 1.  

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

SEC. 2.  

Section 841 of the Civil Code is repealed.

SEC. 3.  

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

841.  

(a) Adjoining landowners shall share equally in the
responsibility for maintaining the boundaries and monuments
between them.

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

(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.

(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:

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

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

(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.

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

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

(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.

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

(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.

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

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

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