BILL ANALYSIS Ó
AB 1404
Page 1
Date of Hearing: May 7, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1404 (Judiciary) - As Amended: April 30, 2013
SUBJECT : REAL PROPERTY: BOUNDARIES
KEY ISSUE : SHOULD CALIFORNIA'S ANTIQUATED 150 YEAR OLD FENCE
STATUTE, RELEVANT TO THE GOLD RUSH DAYS BUT NOT TO CONTEMPORARY
CALIFORNIA, BE UPDATED WITH MODERN LANGUAGE TO CLARIFY THE
ORIGINAL INTENT THAT NEIGHBORS TYPICALLY SHARE THE BENEFITS AND
RESPONSIBILITIES OF COMMON FENCES TO ENSURE THEIR PRIVACY AND
THEIR PRIVATE PROPERTY?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial bill seeks to clarify and modernize
California's antiquated 150 year old neighborhood fence statute,
maintaining the state's long tradition which holds that
neighbors are presumed to gain mutual benefits from the
construction and maintenance of a boundary fence between their
properties, and as a result are generally equally responsible to
contribute to the construction and maintenance of their shared
fencing. This appears to be the approach intended for the past
141 years since Section 841 of the Civil Code was originally
enacted in order to safeguard against the unjust enrichment of
one landowner by the adjoining landowner's construction or
maintenance of a boundary fence between them. However this is
one of the rare examples of an old California statute never
having been amended in all that time, so its 1870s language is
no longer clear or helpful. This measure thus seeks to update
and clarify existing law regarding shared fencing in California
to reflect the modern benefits associated with boundary fences,
which include protecting the premises against invasions of
privacy and unlawful encroachment. In addition, the statutory
update will provide much better guidance to all Californians who
share common fences, to minimize neighborhood disputes. The
measure has no known opposition.
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SUMMARY : Seeks to clarify and modernize California's almost 150
year old neighborhood fence statute, maintaining the state's
long tradition which holds that neighbors are presumed to gain
mutual benefits from the construction and maintenance of a
boundary fence between their properties, and as a result are
generally equally responsible to contribute to the construction
and maintenance of their shared fencing. Specifically, this
bill :
1)Provides that there is a rebuttable presumption that adjoining
landowners gain an equal benefit from the shared fencing that
divides their properties, unless otherwise agreed to by the
parties in a written agreement, and adjoining landowners are
presumed to be equally responsible for the reasonable costs of
construction or maintenance of any such fencing.
2)Requires a landowner who intends to incur costs for the
construction or maintenance of a shared fence with an
adjoining landowner, and who wishes to have reasonable
contribution for those costs by the adjoining landowner, to
provide that neighbor written notice of at least 30 days to an
adjoining landowner prior to any construction or maintenance
of the fencing.
3)Requires the 30-day notice to include the following:
notification of the presumption of equal responsibility for
the reasonable costs of construction, maintenance or necessary
replacement of the fence, and the estimated construction or
maintenance costs.
4)Provides that, in the event there is a subsequent dispute
about the shared fencing project, the court shall order
contribution of the reasonable costs of construction or
maintenance of the fencing, unless the adjoining landowner
either rebuts the presumption, as specified, or demonstrates a
financial hardship, and the court determines that no
contribution or a contribution of less than an equal share is
owed to the requesting landowner.
5)Provides that the presumption, as indicated above, may be
rebutted by a mere preponderance of the evidence that
demonstrates that imposing equal responsibility for the
reasonable costs of construction or maintenance would result
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in a manifest injustice.
6)Requires the court to consider, when determining whether equal
responsibility for the reasonable costs of construction,
maintenance or necessary replacement would result in a
manifest injustice, all of the following factors:
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 value of the land 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.
d) The reasonableness of a particular construction or
maintenance project, including: 1) The extent to which the
costs of the project are unnecessary; and 2) The result of
the landowner's personal aesthetic, architectural, or other
preferences.
e) Any other equitable factors appropriate under the
circumstances.
7)Defines 'adjoining landowner' as any private person or private
entity that lawfully holds any possessory interest in real
property.
8)Excludes from the meaning of 'adjoining landowner' for
purposes of this section any city, city and county, district,
public corporation, or other political subdivision, public
body, or public agency that lawfully holds any possessory
interest in real property.
EXISTING LAW provides that "coterminous owners are mutually
bound equally to maintain the fences between them, unless one of
them chooses to let his land lie without fencing, in which case,
if he afterward encloses it, he must refund to the other a just
proportion of the value, at that time, of any division fence
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made by the latter." (Civil Code Section 841(2).)
COMMENTS : This non-controversial bill seeks to clarify and
modernize California's almost 150 year old neighborhood fence
statute, maintaining the state's long tradition which holds that
neighbors are presumed to gain mutual benefits from the
construction and maintenance of a boundary fence between their
properties, and as a result are generally equally responsible to
contribute to the construction and maintenance of their shared
fencing. This appears to be the approach intended for the past
141 years since Section 841 of the Civil Code was originally
enacted in order to safeguard against the unjust enrichment of
one landowner by the adjoining landowner's construction or
maintenance of a boundary fence between them. However this is
one of the rare examples of an old California statute never
having been amended in all that time, so its 1870s language is
no longer clear or helpful. This measure thus seeks to update
and clarify existing law regarding shared fencing in California
to reflect the modern benefits associated with boundary fences,
which include protecting the premises against invasions of
privacy and unlawful encroachment. In addition, the statutory
modernization will provide much better guidance to all
Californians who share common fences.
Background : Civil Code section 841 was originally enacted to
safeguard against the unjust enrichment of one landowner, most
often a California rancher or farmer, by an adjoining
landowner's construction and/or maintenance of a boundary fence.
However the benefits associated with these original Gold Rush
era boundary fences-such as the prevention of roaming
livestock-have of course substantially evolved since the state's
fencing statute was enacted in the 1870s. Thus this Committee
bill seeks to bring this statute up to modern California where
Californians most often live in urban or suburban areas with a
plethora of shared fences, where it is not unusual for some
neighbors to share fencing with three or four other neighbors.
This bill therefore seeks to clarify in modern English the
statute's original intent that neighbors gain mutual benefits
from the construction and maintenance of a boundary fence
between their properties, and are therefore appropriately
typically should be presumed to share equally in the need to
contribute to the construction and maintenance of those fences.
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In addition, the updating of the law seeks to minimize
neighborhood disputes.
Enacted in 1872, Civil Code section 841 has been without any
revision or amendment since its enactment, which has left the
language of the current statute antiquated and unclear. Under
the current statute, adjoining landowners are mutually bound to
maintain boundaries between them, including fences, if the
property is enclosed. In other words, property owners are only
responsible for contributing, a "just proportion of the value"
to the construction or maintenance of the fence if they are
using the boundary fence to enclose their own property. (See
Gonzales v. Wasson (1876) 51 Cal. 295 [one adjoining landowner
could compel another to contribute to the expense of maintaining
a partition fence when the fence completed an enclosure].)
Modernizing the 'Good Neighbor' Boundary Fence Statute Will
Protect Against the Contemporary Risks of Unjust Enrichment . As
written, Civil Code section 841 seeks to protect against a
landowners unjust enrichment when an adjoining landowner
provides a mutual benefit in the form of construction or
maintenance of a boundary fence when one uses the boundary fence
to enclose his or her land. (See Bliss v. Sneath (1894) 103
Cal. 43, 45-46.)
During the mid-1800s when this law was originally enacted, the
California Legislature recognized the importance of protecting
the fruits born of land cultivated for harvest, and enacted
Section 841 of the Civil Code in 1872, which provided that
adjoining landowners are mutually bound equally to maintain the
fences between them. At that time, the primary benefit
associated with erecting a boundary fence around one's property
was to, "prevent the ingress and egress of domestic animals as
they are usually nurtured and confined thereon, and to protect
the premises enclosed from unlawful encroachment." (Meade v.
Watson (1885) 67 Cal. 591. 593.) By confining such animals,
landowners could avoid liability associated with damage caused
to adjoining landowner's crops because of animals roaming free.
(Ibid.)
The current language of Civil Code section 841 reflects this
narrow understanding of the benefits associated with, and the
purposes served by a boundary fence. However in a society no
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longer dominated by agrarian pursuits, updating and modernizing
the statute to better reflect the modern benefits associated
with neighborhood fences makes sense, such as protecting the
premises against invasions of privacy and unlawful encroachment.
Today, one hundred and forty-one years after this statute's
enactment, the landscape of California has changed dramatically.
The United States Census Bureau reports that nearly 95 percent
of California's population resides in urban areas, defined as
densely developed residential, commercial and other
nonresidential areas. The Los Angeles-Long Beach-Anaheim area,
for example, is the most densely populated urbanized area with
nearly 7,000 people per square mile. The San Francisco-Oakland
area is the second most densely populated with 6,266 people per
square mile.
In such densely populated urban areas, fencing between
properties serves the basic functions of preserving each
neighbor's privacy and provides a visual demarcation of property
lines. Given these basic mutual benefits, fences dividing
adjoining landowner's properties in an urban society are usually
necessary and generally expected. The modernization of the
statute in this bill will better recognize these contemporary
mutual benefits by creating a presumption that adjoining
landowners share an equal benefit, and an equal responsibility
for the reasonable costs of construction and maintenance, of any
fence dividing their properties.
At the same time, the bill takes into account that neighborhood
fences are not always mutually beneficial, and that an adjoining
landowner who clearly receives little or no benefit from a
boundary fence should not be forced to subsidize an adjoining
landowner's fence construction. By allowing such owners to
demonstrate the unfairness of imposing equal responsibility in a
particular case, this bill seeks to prevent the inequities that
would result from a hard and fast "blanket" presumption of equal
benefit and responsibility.
This Clarification of State Law Is Particularly Helpful Because
Local Ordinances Often Fail to Provide Needed Guidance to
Adjoining Landowners Regarding Shared Fences: Research by the
Committee reveals that there are several California cities that
explicitly require property owners to maintain any fences on
their properties. However, the ordinances do not address in any
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way how adjoining property owners should avoid and if needed
settle disputes regarding the reasonable apportionment of costs
of construction or maintenance of such shared fencing.
For example, Sacramento Municipal Code Section 17.76.010(C)
states the maintenance of a wall or fence shall be the
responsibility of the owner(s) of the property on which the
fence is located. However, the ordinance fails to specify how
the responsibilities shall be shared when - as is so often the
case in modern California - the fencing is shared between one or
perhaps several adjoining landowners. In addition, Los Angeles
Municipal Code Section 91.8104.13 merely requires fences to be
maintained in good repair, but again fails to indicate by whom,
and by what manner neighbors should presumptively share in that
responsibility.
These typical omissions and ambiguities in local ordinances that
touch upon shared fencing issues highlight the need and benefit
of finally clarifying and modernizing the state's neighborhood
fencing statute under Civil Code section 841.
Other States' Statutory Schemes Similarly Recognize a
Presumption of Mutual Benefit from Neighborhood Fencing: In
several states, including Minnesota, Nebraska, Iowa, New
Hampshire and Louisiana, adjoining landowners are similarly
presumed to gain a mutual benefit from a fence between their
properties, and are required to contribute to the construction
or maintenance of a fence.
Under Minnesota's statutory scheme, for example, just like
California's antiquated statute, adjoining landowners are
presumed to benefit from any fence dividing their properties,
unless evidence to the contrary is presented. (Min. Stat. Ann.
§ 344.03.) The Court of Appeals in In re Bailey emphasized the
purpose of the state's partition fence law. "We believe it is
clear that the partition fence law serves the broad purposes of
mediating boundary, fence, and trespass disputes by requiring
adjoining landowners to share the cost of a partition fence."
(In re Bailey (2001) 626 N.W.2d 190, 195.)
California would continue to be in line with other states in
modernizing its fencing law's approach. Indeed, in 2010, the
Nebraska State Legislature amended Section 34-102 of its Revised
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Statutes to announce a rule similar to the one proposed by this
bill, which recognizes the duty of adjoining landowners for the
construction or maintenance to be mutually beneficial to the
public interest and general welfare. The amendment was
accompanied by the following legislative findings:
The Legislature finds the duty of adjoining landowners
for the construction and maintenance of division
fences to be beneficial to the public interest and
welfare. Such benefits are not confined to historical
and traditional societal benefits that accrue from
proper constraint of livestock, but also include
suppression of civil disputes and public and private
nuisances and the protection of public safety.
Division fences promote the peace and security of
society?.
(2010 Nebraska Laws L.B. 667.) It bears noting that some of the
Nebraska Legislature's findings would apply with even more force
in California, given the prevalence of densely populated urban
areas, and the privacy-related benefits of boundary fences in
those areas.
Appropriate Notice to Encourage Cooperation and Minimize
Disputes: To encourage neighborly cooperation and collaboration
for resolving neighborhood fencing issues, this modernization of
the fencing statute requires a neighbor seeking contribution
from another neighbor to provide reasonable written notice to
that adjoining neighbor prior to any construction or maintenance
of the shared fencing between their properties. This will
provide the appropriate opportunity for neighbors, if they so
desire, to have an equal voice in determining the type of fence
or fence repair that will address the fencing issue between
their properties. The bill therefore requires the 30-day
written notice to include the following information:
notification of the presumption of equal responsibility for the
reasonable costs of construction, maintenance, or necessary
replacement of the fence, along with the estimated construction
or maintenance costs.
Though Unaddressed in the Antiquated Original Fencing Statute,
This Bill Is Appropriately Limited to Private Persons and
Private Entities: The presumption of equal responsibility and
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contribution for shared fencing does not make sense in the
context of public lands, such as California's 1.5 million acres
containing state parks, or in the context of many other state
and local public lands. The measure thus appropriately limits
its scope to private landowners.
REGISTERED SUPPORT/OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334