In Southern California, most of us live in homes where we share a fence, wall or landscaping with our neighbors. Our homes are often located in close proximity to our adjoining neighbors, and we rely upon the wall, fence, trees or landscaping to provide us with privacy and improve our outdoor living space. We are all familiar with the old adage, “Good fences make good neighbors.” But when fences, landscaping and other structures need repair, your relationship with your neighbors may be tested. Here are a few tips to help you avoid turning your happy home into a neighborhood feud.
1. Know Your Rights. The best place to start is at the beginning. Before you make demands of your neighbor or start making repairs on your own, you must know your rights and obligations for maintenance and repair of structures along the boundary with your neighbor. Your rights and obligations may change depending upon whether the structure is entirely on your property or your neighbor’s property, and whether the structure provides any support for buildings or improvements.
2. Know the Location of the Boundary Line. Your legal rights and obligations, and those of your neighbor, will change depending upon whether the structure is entirely on your property, on the property line, or entirely on your neighbor’s property. Even though a fence, wall, trees or other landscaping looks as though it “must have been placed on the property line,” it may not be. You should look for the surveyor’s markers to try to confirm the location of the boundary line, and if necessary, have a licensed surveyor confirm the location of the boundary so that you will know, exactly, whether the disputed structure is on your property or on your neighbor’s property.
For example, a “division fence” is a fence that is located on the boundary between two adjoining properties. If the fence is completely on the property of one of the adjoining owners, it is not a division fence. Under Civil Code §841, both owners are equally responsible for the reasonable costs of construction and maintenance of a division fence unless there is a written agreement to the contrary.
A “party wall” is a wall that is shared jointly by adjoining property owners to support their separate buildings or improvements. A party wall may be located on the boundary line or entirely on either adjoining property. The rights and obligations of neighbors regarding a party wall is determined by their express agreement. In the absence of an express agreement between the parties, an agreement to share the costs of maintenance may be implied from the adjoining owner’s use of the wall. While both adjoining property owners have the right to use a party wall, neither can do anything to cause damage to the wall or their neighbor’s property. The rights and obligations of neighbors with regard to a party wall depends upon the specific facts of each circumstance.
3. Don’t Resort to “Self-Help.” Taking matters into your own hands for the sake of efficiency, or cost savings can end up costing you big bucks. For example, if you cut down a tree that you mistakenly thought was entirely on your property when in fact, it was on your neighbor’s property, you will be liable for the cost of replacing the tree, and possibly treble damages. In the case of Kallis v. Sonnes (2012) 208 Cal.App.4th 1274, the court awarded $107,256.62 in damages against a neighbor for wrongfully cutting down one tree that was located on the property line between the property owned by the plaintiff and the defendant/neighbor. (See, California Civil Code §3346 and Code of Civil Procedure §733.)1 Because the tree was on the property line, the neighbor who cut down the tree needed his neighbor’s permission, but did not have it.
Also, by resorting to self-help you are sending a message to your neighbor that you are not concerned with his or her thoughts or feelings, or about how your self help may affect your neighbor’s use and enjoyment of their property. As a result, your neighbor may be more likely to be critical of work you do along the property line, and will be less likely to cooperate with you, when you may need your neighbor’s cooperation the most.
4. Take a Problem Solving Approach. Once you have determined the location of the boundary line, and know your rights and obligations and those of your neighbor, think about solutions that may benefit both of your interests. For example, instead of replacing the same old wooden fence that has become dilapidated over the years, perhaps it is time to build a wall, or install shrubs or other landscaping along the area. There can often be more than one solution to a maintenance problem that can benefit both your property and your neighbor’s property. Try to find a “win-win” solution to propose to your neighbor. At the very least, you will be sending a message to your neighbor that you are willing to work with him, and will attempt to minimize any negative effects the proposed work may have on his property.
5. Consult with Professionals. It is likely that your home is one of the biggest investments you have made. You should not hesitate to get the advice of professionals so that you understand your rights, obligations and your options. A surveyor can confirm the location of your property line. Landscape professionals (arborists and landscaping contractors) can provide you with multiple solutions for problems that you may have never thought about. Knowledgeable real estate attorneys can advise you of your legal rights and obligations, and can help you avoid costly litigation. When making decisions that affect your property, consulting with the appropriate professional can help you make the right decisions that will minimize your costs, save you money and avoid nasty conflicts with your neighbors.
When a dispute with your neighbor arises, keep these tips in mind and hopefully you can resolve the problem and maintain your happy neighborhood.
1 – Trees are often a source of disputes between neighbors. The rights and obligations of neighbors regarding the maintenance of trees, encroaching roots and overhanging branches are complicated, and homeowners should proceed cautiously when these issues arise.
For over 30 years Incorvaia & Associates has specialized in representing clients in real estate and business litigation matters in state and federal courts, and in actions before the Department of Real Estate. The information contained in this article is intended for informational purposes only and is not intended to constitute advertising, solicitation or legal advice.