BILL ANALYSIS �
AB 1404
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1404 (Judiciary Committee)
As Amended June 14, 2013
Majority vote
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|ASSEMBLY: |72-0 |(May 16, 2013) |SENATE: |39-0 |(June 24, |
| | | | | |2013) |
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Original Committee Reference: JUD.
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 , among other things:
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.
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 reasonable written notice of at least 30
days to an adjoining landowner prior to any construction or
maintenance of the fencing.
3)Requires the court to consider, when determining whether equal
responsibility for the reasonable costs of construction,
maintenance or necessary replacement would result in
injustice, various appropriate factors.
4)Excludes from the measure any city, county, city and county,
district, public corporation, or other political subdivision,
public body, or public agency.
The Senate amendments are clarifying.
AB 1404
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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
made by the latter."
FISCAL EFFECT : None
COMMENTS : This non-controversial Assembly Judiciary Committee
bill merely seeks to clarify and modernize California's almost
150 year old neighborhood fence statute, maintaining the state's
long tradition that neighbors are generally presumed to gain
mutual benefits from the construction and maintenance of a fence
between their properties. This appears to be the approach
intended for the past 141 years since the law was originally
enacted in order to safeguard against the unjust enrichment of
one landowner by the adjoining landowner's construction or
maintenance of a 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 no longer
provides clear and helpful guidance to those seeking to
understand the law.
While maintaining the centuries-old rule in California that
neighbors who share a fence equally share in the responsibility
for maintaining it, the bill also takes into account that
neighborhood fences are not always mutually beneficial, and that
an adjoining landowner who receives little or no benefit from a
fence will not be required to subsidize an adjoining landowner's
fence construction or maintenance. By allowing such owners to
demonstrate the unfairness of imposing equal responsibility in a
particular case, this bill prevents the inequities that would
result from a hard and fast "blanket" presumption of equal
benefit and responsibility.
Research by the Assembly Judiciary Committee reveals that there
are several California cities that explicitly require property
owners to maintain fences on their properties. However, the
ordinances do not address how adjoining property owners should
avoid disputes regarding the reasonable apportionment of costs
of construction or maintenance of such shared fencing. This
bill will thus help guide neighbors on these issues to minimize
neighborhood disputes. These typical omissions and ambiguities
in local ordinances highlight the need and benefit of clarifying
AB 1404
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and modernizing the state's neighborhood fencing statute.
The bill is also in line with how other states deal with these
neighborhood issues, such as Minnesota, Nebraska, Iowa, New
Hampshire and Louisiana.
The presumption of equal responsibility and 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.
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
FN: 0001215