BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 1404|
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CONSENT
Bill No: AB 1404
Author: Assembly Judiciary Committee
Amended: 6/14/13 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 7-0, 6/11/13
AYES: Evans, Walters, Anderson, Corbett, Jackson, Leno, Monning
ASSEMBLY FLOOR : 72-0, 5/16/13 - See last page for vote
SUBJECT : Real property: boundaries
SOURCE : Author
DIGEST : This bill establishes 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.
ANALYSIS : 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/her land lie without fencing, in
which case, if he/she afterwards encloses it, he/she must refund
to the other a just portion of the value, at that time, of any
division fence made by the latter. (Civil Code Section 841.)
This bill:
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1. Repeals Civil Code Section 841, and instead, provides that
adjoining landowners shall equally in the responsibility for
maintaining the boundaries and monuments between them.
2. Provides 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, be presumed to be equally responsible for
reasonable costs of construction, maintenance, or necessary
replacement of the fence.
3. Requires 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 must
include notification of the presumption of equal
responsibility for the reasonable costs of construction,
maintenance, or necessary replacement of the fence. The
notice must 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.
4. Allows 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: (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 hardship given that party's
financial circumstances as demonstrated by reasonable proof;
(d) the reasonableness of the particular construction or
maintenance project, as specified; and (e) any other
equitable factors appropriate under the circumstances.
5. Provides that when a party rebuts the presumption by a
preponderance of the evidence, the court will, in its
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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.
6. Defines "landowner" as a private person or entity that
lawfully holds any possessory interest in real property, and
provides that landowner does not include a city, county, city
and county, district, public corporation, or other political
subdivision, public body or public agency.
7. Defines "adjoining" as contiguous or in contact with.
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. (Civil Code Section 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 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.
The existing statutory requirement generally imposing a mutual
obligation upon landowners to maintain fences has not been
amended in over 140 years.
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FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
ARGUMENTS IN SUPPORT : 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."
ASSEMBLY FLOOR : 72-0, 5/16/13
AYES: Achadjian, Alejo, Ammiano, Atkins, Bigelow, Bloom,
Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown,
Buchanan, Ian Calderon, Campos, Chau, Ch�vez, Chesbro, Conway,
Cooley, Dahle, Daly, Dickinson, Eggman, Fong, Fox, Frazier,
Beth Gaines, Garcia, Gatto, Gomez, Gordon, Gorell, Gray,
Hagman, Hall, Harkey, Roger Hern�ndez, Jones, Jones-Sawyer,
Levine, Linder, Logue, Lowenthal, Maienschein, Mansoor,
Medina, Mitchell, Mullin, Muratsuchi, Nazarian, Nestande,
Olsen, Pan, Patterson, Perea, V. Manuel P�rez, Quirk,
Quirk-Silva, Rendon, Salas, Skinner, Ting, Torres, Wagner,
Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, John A.
P�rez
NO VOTE RECORDED: Allen, Donnelly, Grove, Holden, Melendez,
Morrell, Stone, Vacancy
AL:d 6/14/13 Senate Floor Analyses
SUPPORT/OPPOSITION: NONE RECEIVED
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