What's the process to sue a neighbor for shared fence in California?

[dvl]

What is the name of your state (California)?

Long story short, I've followed the California guidelines on notifying the neighbor of the issues with our fence falling apart. I suspect the cause of the falling fence is his properly elevation is higher than mine since they landscaped and ended up with a much higher level slope than mine. Additionally, whoever built their fence drove a nail sticking 3" over to my properly which scrapped me in the arm awhile ago. I've since bent the nail down.

Because their dirt is high the fence lean over to my side and the fence had to be supported with some 2x4.

After much back and forth with them for a few months, I finally got fed up and scheduled the work to be done and told him of the schedule. This is only when he response saying that he hope he doesn't have to pay for any part of it.

I'm pretty much done with this neighbor and is ready to go ahead with it and bring them to court. For $1200 I guess it's small claims, they live in a nice house and drives $60k cars so they're not in poverty or anything. If I file small claims against them and they don't response or ignore it, am I out of luck?

 

[birdbrain53]

First of all, before going to court, you should send a "demand letter" for half the amount of the fence, and include a copy of the invoice. Be *professional*, non-threatening and keep to the points:
1. The fence was falling over (include picture)
2. You asked him verbally to share the cost
3. You did get it replaced (copy of invoice and picture of new fence)
4. Ask again for him to share the cost.
5. Include a copy of the neighbor fence law (google it)
6. Let him know you will proceed legally if necessary.

Then if your neighbor does not pay, file in small claims court. You will have to pay filing fees and maybe some other court costs. You will have to have either a process server ($$) or someone unrelated to the case serve the court papers to your neighbor. You should include a copy of the invoice, any pictures of before and after fence replacement, and a copy of your above mentioned letter as part of your court filing. The same paperwork is what gets served to your neighbor. So that's 2 copies of your court filing with documentation that you have to file with the court clerk and the process server's documentation, and the third copy is served to your neighbor.

When your court date arrives, bring all your paperwork with you - the pictures, invoices, letters, etc. If your neighbor does not show up to court, you may win by default. If he shows up and loses, you win your lawsuit and then can proceed to the payment portion of your legal journey.

Just because your neighbor may lose doesn't mean he will pay you immediately. You may have to go back to court to enforce your judgement.

 

[dvl]

Birdbrain, thanks for the detail response. I've actually did a lot of what you've mentioned already... However, not a physical letter but via email. Would that be sufficient?

1. The fence was falling over (include picture) - I've document the fence damages with photos and videos. We actually first had this discussion in person in my backyard. He had then agreed to go for it until he saw the cost.

2. You asked him verbally to share the cost - Did this when we did the above and I've also sent him the email with the quote from the contractor and I even broke it down how much it was for each of us.
3. You did get it replaced (copy of invoice and picture of new fence) -- The fence is scheduled to be worked on next week.
4. Ask again for him to share the cost. - I will do this again once the new fence is put up.
5. Include a copy of the neighbor fence law (google it) -- I did this in step #2
6. Let him know you will proceed legally if necessary. - I will remind him when I send him the bill.

 

[Ohiogal]

Did you get his agreement to fix the fence? Do you have a property survey showing that the fence is on the property line and not just on your property?

 

[Ohiogal]

More importantly did you follow the law:

841.

(a) Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.

(b) (1) 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 the reasonable costs of construction, maintenance, or necessary replacement of the fence.

(2) Where a landowner intends to incur costs for a fence described in paragraph (1), the landowner shall give 30 days’ prior written notice to each affected adjoining landowner. The notice 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 include a description of the nature of the problem facing the shared fence, the proposed solution for 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.

Did you provide the written notice PRIOR to replacing the fence -- and at least 30 days prior? Did you include the notification that he was presumed to be responsible for half the reasonable costs of construction? You didn't say you did. Did you provide him IN WRITING PRIOR TO REPLACEMENT of all of the requirements in the law?
Then can you overcome the below issues:

(3) The presumption in paragraph (1) may 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 all of the following:

(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 financial hardship given that party’s financial circumstances as demonstrated by reasonable proof.

(D) The reasonableness of a particular construction or maintenance project, including all of the following:

(i) The extent to which the costs of the project appear to be unnecessary or excessive.

(ii) The extent to which the costs of the project appear to be the result of the landowner’s personal aesthetic, architectural, or other preferences.

(E) Any other equitable factors appropriate under the circumstances.

How much was the increase in property value AFTER construction of the new fence? Did his property increase in value by more than his share of the fence?

(4) Where a party rebuts the presumption in paragraph (1) 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.

If you didn't follow through with prior WRITTEN NOTICE before replacing the fence, you don't have a case.

The law does define things:

(c) For the purposes of this section, the following terms have the following meanings:

(1) “Landowner” means a private person or entity that lawfully holds any possessory interest in real property, and does not include a city, county, city and county, district, public corporation, or other political subdivision, public body, or public agency.

(2) “Adjoining” means contiguous to or in contact with.

 

[STEPHAN]

Don't use e-mail. Send a letter certified mail return receipt.

 

[Ohiogal]

Birdbrain, thanks for the detail response. I've actually did a lot of what you've mentioned already... However, not a physical letter but via email. Would that be sufficient?

1. The fence was falling over (include picture) - I've document the fence damages with photos and videos. We actually first had this discussion in person in my backyard. He had then agreed to go for it until he saw the cost.

2. You asked him verbally to share the cost - Did this when we did the above and I've also sent him the email with the quote from the contractor and I even broke it down how much it was for each of us.
3. You did get it replaced (copy of invoice and picture of new fence) -- The fence is scheduled to be worked on next week.
4. Ask again for him to share the cost. - I will do this again once the new fence is put up.
5. Include a copy of the neighbor fence law (google it) -- I did this in step #2
6. Let him know you will proceed legally if necessary. - I will remind him when I send him the bill.

1. Could it have been repaired?
2. So was that with the proper notification as required by law? Did you do that at least 30 days ahead of replacement.
You don't get to just demand money.

 

[dvl]

I'm going to try to answer everyone's question here....

Ohiogal:

Here in California, especially in Santa Clara County, The majority of every fence is on the 0 property line. I learned this through my realtor not long ago. We live in a tract home and these fences were put up by developers since day one. All 3 sides of our fences are shared with someone. My neighbor on the other side of the house just did theirs and also shared the cost with their other neighbor and which she's also going to be sharing the cost with me to replaced our dividing fence. (actually 3 neighbors in all, everyone else has agreed to share the cost except for this one). So I'm 100% certain that this is a "shared" fence.

A noticed was sent over 6 weeks ago with a copy of the quote, detail reasons on why the fence needs to be replaced. (so yes I've met my 30 days mark) they even responded to me via email to go ahead with the work (as long as they don't have to pay)

I've had multiple contractor bid on this job and non recommend fixing the fence because it's a complete tear down due to majority of the boards are warped, rotted and damaged posts.

As far as value increase, I don't believe it would increase by much of anything. The fence is leaning and broken, it's in an unsafe state.

Stephan: From this point on, I will start sending certified mail. From the beginning, it should have just been a simple neighbor to neighbor communication, "Our Fence is falling down, lets get it fixed" so all was verbal, text and email until one decided that since the fence is leaning towards on my side it doesn't affect them so why pay for it. I should just push the damn fence over to their side.

 

[Ohiogal]

I'm going to try to answer everyone's question here....

Ohiogal:

Here in California, especially in Santa Clara County, The majority of every fence is on the 0 property line. I learned this through my realtor not long ago. We live in a tract home and these fences were put up by developers since day one. All 3 sides of our fences are shared with someone. My neighbor on the other side of the house just did theirs and also shared the cost with their other neighbor and which she's also going to be sharing the cost with me to replaced our dividing fence. (actually 3 neighbors in all, everyone else has agreed to share the cost except for this one). So I'm 100% certain that this is a "shared" fence.

You have a survey to PROVE that this is on the property line, correct?

A noticed was sent over 6 weeks ago with a copy of the quote, detail reasons on why the fence needs to be replaced. (so yes I've met my 30 days mark) they even responded to me via email to go ahead with the work (as long as they don't have to pay)

Did the notice have the REQUIRED NOTIFICATION per the law:
The notice 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 include a description of the nature of the problem facing the shared fence, the proposed solution for 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.

I've had multiple contractor bid on this job and non recommend fixing the fence because it's a complete tear down due to majority of the boards are warped, rotted and damaged posts.

Okay.

As far as value increase, I don't believe it would increase by much of anything. The fence is leaning and broken, it's in an unsafe state.

If he shows that it won't increase the property value, he may not have to pay anything.

Stephan: From this point on, I will start sending certified mail. From the beginning, it should have just been a simple neighbor to neighbor communication, "Our Fence is falling down, lets get it fixed" so all was verbal, text and email until one decided that since the fence is leaning towards on my side it doesn't affect them so why pay for it. I should just push the damn fence over to their side.

My, aren't you mature. You need to abide by the law which requires a written notice with SPECIFIC information included. If you haven't done that, you haven't followed the law.

 

[dvl]

I misunderstood your question when you asked if it was going to increase the property value.... answer is YES it will for the BOTH of us.

 

[latigo]

More importantly did you follow the law: . . . . . .

For you it would be "important' that after you have finished cutting and pasting laws about which the poster has expressed familiarity THAT you read the laws regarding the establishment of a boundary line by mutual recognition and acquiescence. And that you retract your ill-advised suggestion that the poster incur the expense of having the line surveyed!

 

[Proserpina]

For you it would be "important' that after you have finished cutting and pasting laws about which the poster has expressed familiarity THAT you read the laws regarding the establishment of a boundary line by mutual recognition and acquiescence. And that you retract your ill-advised suggestion that the poster incur the expense of having the line surveyed!

I suggest you read what was actually written, and amend your ill-advised pseudo-response.

 

[latigo]

I suggest you read what was actually written, and amend your ill-advised pseudo-response.

I can read just fine thank you, PRO SE (rpina)! Including the following irrelevant, pointless questions "actually" asked by your revered idol, OHIOGAL; who appears to know more about platted property lines and land surveys, in fact seemingly obsessed, than she does about real property law!

(OG 4/21/16 12: 00 PM) "Do you have a property survey showing that the fence is on the property line and not just on your property?"

(OG 4/21/16 2:41 PM) "You have a survey to PROVE that this is on the property line, correct?"

Of course it is no startling revelation that you don't know why such questions have no legal significance to the case at hand.
____________

"Pseudo response"? You want to talk about disingenuous responses? Good, because we can now go back several month where you likewise applauded OG's admonition to the mother of a five year old daughter that mom could expected to be promptly arrested, tried and convicted of felony perjury.

The mother's heinous crime?

Having an admitted extramarital affair and uncertain as to the daughter's father she and her husband (unnecessarily) filed a joint, sworn declaration that the husband was the child's biological parent.

And you, PRO SE rpina not only eagerly jumped in with full support, but for good measure added that dad was equally guilty and both would be prosecuted!

Care to suggest a label for those "responses"?

 

[Ohiogal]

I can read just fine thank you, PRO SE (rpina)! Including the following irrelevant, pointless questions "actually" asked by your revered idol, OHIOGAL; who appears to know more about platted property lines and land surveys, in fact seemingly obsessed, than she does about real property law!

(OG 4/21/16 12: 00 PM) "Do you have a property survey showing that the fence is on the property line and not just on your property?"

(OG 4/21/16 2:41 PM) "You have a survey to PROVE that this is on the property line, correct?"

Of course it is no startling revelation that you don't know why such questions have no legal significance to the case at hand.
____________

"Pseudo response"? You want to talk about disingenuous responses? Good, because we can now go back several month where you likewise applauded OG's admonition to the mother of a five year old daughter that mom could expected to be promptly arrested, tried and convicted of felony perjury.

The mother's heinous crime?

Having an admitted extramarital affair and uncertain as to the daughter's father she and her husband (unnecessarily) filed a joint, sworn declaration that the husband was the child's biological parent.

And you, PRO SE rpina not only eagerly jumped in with full support, but for good measure added that dad was equally guilty and both would be prosecuted!

Care to suggest a label for those "responses"?

I stand by the questions I asked because OP should NOT be assuming that the fence is on the line. MOST people when they purchase a house get the property surveyed and that would tell OP ... Not that hard. But if he is going to sue he should have that information. And filing a joint, sworn declaration (paternity affidavit) can be considered felony perjury in many areas when one party knows there are other possible fathers. It says so on the affidavit itself in many states. So how about you do more than just read the law and actually practice it somewhere?

 

[Proserpina]

I stand by the questions I asked because OP should NOT be assuming that the fence is on the line. MOST people when they purchase a house get the property surveyed and that would tell OP ... Not that hard. But if he is going to sue he should have that information. And filing a joint, sworn declaration (paternity affidavit) can be considered felony perjury in many areas when one party knows there are other possible fathers. It says so on the affidavit itself in many states. So how about you do more than just read the law and actually practice it somewhere?

We could always go back to where he made a twit of himself about GPV in Florida. Or, countless other .. "mistakes" .. from the not-too-distant past.

Consider the source