BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 1404 (Committee on Judiciary)
As Amended April 30, 2013
Hearing Date: June 11, 2013
Fiscal: No
Urgency: No
BCP
SUBJECT
Real property: boundaries
DESCRIPTION
The bill would establish a 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.
BACKGROUND
Under existing law, "coterminous" landowners (property owners
that share the same boundary) are required to equally maintain
the fences between them, unless one of them chooses to let his
or her land lie without fencing. (Civ. Code Sec. 841.) The
requirement for landowners to equally share in the costs of
fences between their properties was enacted in 1872 and based
upon prior requirements for landowners to share costs for
fencing. In Bliss v. Sneath (1894) 103 Cal. 43, the California
Supreme Court further observed:
[Civil Code Section 841 is] one of many code provisions
relating to the rights and duties of property holders, and
the liability arising from the conditions mentioned cannot
justly be said to be a statutory liability. The liability
arises from the fact that plaintiff's principal made use of
a fence built by the defendant under circumstances which
create the liability. She has been benefited, and the law
says she must pay for it. Here are all the elements of an
implied contract. The obligation to pay legal interest
(more)
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could be claimed, with much greater plausibility, to be a
statutory liability, and therefore not a contract liability.
The fact that the Civil Code has changed some common-law
rules, by which the rights and obligations of persons were
ascertained, does not make the new or changed obligations
any less obligations arising from implied contracts than
were the different obligations fixed by the common law.
(Id. at 45.)
The existing statutory requirement generally imposing a mutual
obligation upon landowners to maintain fences has not been
amended in over 140 years. This bill seeks to update and
clarify that section by codifying a presumption that adjoining
landowners are equally responsible for construction, maintenance
or necessary replacement of a fence, requiring a landowner to
give 30 days written notice to affected adjoining landowners
prior to incurring costs for a fence, and allowing the
presumption to be overcome by a preponderance of the evidence
demonstrating that imposing equal responsibility would be
unjust.
CHANGES TO EXISTING LAW
Existing law provides that coterminous owners are mutually bound
equally to maintain: (1) the boundaries and monuments between
them; and (2) the fences between them, unless one of them
chooses to let his land lie without fencing, in which case, if
he afterwards encloses it, he must refund to the other a just
portion of the value, at that time, of any division fence made
by the latter. (Civ. Code Sec. 841.)
This bill would repeal the above provision and, instead, provide
that adjoining landowners shall share equally in the
responsibility for maintaining the boundaries and monuments
between them.
This bill would provide that 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 reasonable costs of construction, maintenance, or necessary
replacement of the fence.
This bill would require a landowner to give 30 days' written
notice to each affected adjoining landowner if the landowner
intends to incur costs for a fence, as specified. The notice
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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 also include a description of the nature of the problem
facing the shared fence, the proposed solution 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.
This bill would allow the above presumption to 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: (1)
whether the financial burden to one landowner is substantially
disproportionate to the benefit conferred upon that landowner by
the fence in question; (2) whether the cost of the fence would
exceed the difference in the value of the real property before
and after its installation; (3) whether the financial burden to
one landowner would impose an undue hardship given that party's
financial circumstances as demonstrated by reasonable proof; (4)
the reasonableness of the particular construction or maintenance
project, as specified; and (5) any other equitable factors
appropriate under the circumstances.
This bill would provide that when a party rebuts the presumption
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.
This bill would define "landowner" as a private person or entity
that lawfully holds any possessory interest in real property,
and provide that landowner does not include a city, city and
county, district, public corporation, or other political
subdivision, public body or public agency.
This bill would also define "adjoining" as contiguous or in
contact with.
COMMENT
1. Stated need for the bill
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According to the author:
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.
The current language of Civil Code section 841 reflects this
narrow understanding of the benefits associated with a
boundary fence. However in a society no longer dominated by
agrarian pursuits, modernizing the statute to better reflect
the contemporary benefits associated with neighborhood
fences makes sense. Today, 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.
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 thus better
recognize these contemporary mutual benefits by clarifying
the rebuttable 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 appropriately 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. The current statute in place does not speak
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to this issue at all.
2. Presumption of benefit and responsibility for fences
Under existing law, coterminous landowners (owners that share
the same boundaries) are required to equally maintain the fences
between them. (Civ. Code Sec. 841.) That requirement does not
apply if one landowner chooses to not place fencing on his or
her land, unless, the landowner later chooses to enclose the
land, in which case, that owner must pay a just portion of the
value of the fence. This bill seeks to update and clarify that
statute by repealing the above requirements and, instead,
enacting a presumption that adjoining landowners share an equal
benefit from any fence dividing their properties and, unless
otherwise agreed to in writing, are equally responsible for the
reasonable costs of construction, maintenance, or necessary
replacement of the fence.
That presumption appears to be consistent with prior law, case
law, and the common perception of landowners in California that
he or she must share in the costs of a fence shared with a
neighbor. To provide clarity as to the burden that must be met
if a landowner disagrees with the presumption, this bill would
allow the presumption to be overcome by a preponderance of the
evidence demonstrating that equal responsibility for the
reasonable costs of construction, maintenance, or necessary
replacement of the fence would be unjust.
The bill would also include various factors that a court must
examine in determining whether the equal sharing of costs would
be unjust, including, whether the financial burden is
substantially disproportionate to the benefit, whether the
financial burden would impose a financial hardship, the
reasonableness of the particular construction or project, and
any other equitable factors. Thus, a landowner that objects to
sharing the equal costs could rebut the presumption by proving,
among other things, that the project is excessive, or that the
owner is financially unable to pay for his or her share of the
fence at that time.
Staff further notes that while most homeowners do share a fence
with at least one neighbor, the last published case citing Civil
Code Section 841 (dealing with equal contribution for fences)
occurred in 1964. Given the regularity with which fence repairs
are likely made within the state, and the lack of reported cases
brought on the issue, it appears as though many landowners
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attempt to resolve any fence dispute without seeking court
involvement (or go to small claims court for reimbursement of
costs). To the extent that this bill clarifies the presumption
of equal responsibility for reasonable costs, as well as
circumstances where equal responsibility would be unjust, the
criteria provided by this bill would provide guidance not only
for the courts, but for parties seeking to resolve the dispute
between themselves.
It should also be noted that the language proposed by this bill
does not expressly include the exemption under existing law for
a landowner who elects to not place fencing on his or her land.
Despite that omission, the factors that must be considered by
the court (including "any other equitable factors appropriate
under the circumstances") would appear to provide sufficient
discretion to allow such an exemption to continue forward where
appropriate.
3. Thirty day notice
In an effort to encourage cooperation and minimize disputes,
this bill would require a landowner to give 30 days' prior
written notice to each affected landowner if he or she intends
to incur costs for which there is a presumption of equal
responsibility. That notice must include notice of a
presumption of equal responsibility and a description of the
problem, proposed solution, estimated costs, proposed cost
sharing, and proposed timeline. While, as noted above, many
landowners may be resolving these disputes without seeking
assistance from a court, it appears appropriate that any update
and clarification of the fence law also include a requirement
for notice prior to replacing a fence (especially when the
landowner will then be seeking contributions for costs). That
advance notice would potentially allow adjoining landowners to
proactively resolve disputes before the fence is actually built
- that resolution could avoid a situation where a party refuses
to pay, which could result in an action filed in court.
It should also be noted that fences can be expensive and that it
would appear to be reasonable to give a landowner at least one
month's notice that he or she may be required to pay several
thousand dollars towards replacement of a fence. Furthermore,
as noted above, since financial hardship is a factor a court
must consider with respect to the presumption of equal
responsibility, that advance notice may promote a discussion
whereby the landowner seeking to erect or repair a fence can be
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made aware that the cost may be a financial hardship for a
particular neighbor. This would assist the landowner in making
an informed decision about whether or not to proceed with the
planned fence construction.
4. Local ordinances
The author notes that "there are several California cities that
explicitly require property owners to maintain any fences on
their properties. However, the ordinances do not address - as
this bill will - 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." As an example of a statute requiring fence
maintenance, Sacramento Municipal Code Section 17.76.010(c)
provides that maintenance of a wall or fence shall be the
responsibility of the owner(s) of the property on which the
fence in located. While this bill is not inconsistent with that
section, it would, as noted by the author, provide detail as to
how costs generally are to be shared between landowners.
5. Scope limited by definition of landowner
This bill would define "landowner" as a private person or entity
that lawfully holds any possessory interest in real property,
but provide that landowner does not include a city, city and
county, district, public corporation, or other political
subdivision, public body, or public agency. As a result, the
definition seeks to limit the proposed presumption to private
landowners but exclude state or local public lands (such as
California's numerous state parks).
To clarify that the definition would also not apply to a county,
the author offers the following amendment:
Author's amendment:
On page 3, line 23 after "city," insert: "county,"
Support : None Known
Opposition : None Known
HISTORY
Source : Author
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Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Committee on Judiciary (Ayes 10, Noes 0)
Assembly Floor (Ayes 72, Noes 0)
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