BILL ANALYSIS                                                                                                                                                                                                    



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          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          141 years since Section 841 of the Civil Code was originally  
          enacted in order to safeguard against the unjust enrichment of  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