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Suing Neighbor for repair of common fence

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CA94523

Junior Member
What is the name of your state (only U.S. law)? California

Our neighbor built an illegal shed and used the common fence as the anchor for the shed's roof. The fence is now is disrepair and he has been asked by the county to remove the shed. We have decided to sue him for the amount to replace the fence since it was his illegal shed that caused the disrepair. He has ignored all requests as he said his home is now a short sale. He was served papers to appear at small claims court next week. He has asked the court to postpone the trial due to him hoping to close on his house. If that happens, will we no longer be able to sue him for the fence? We have been after him since May, 2012 and he has avoided us until we decided to sue him in October. Now that he received the postponement, we are afraid the home will sell and will have to ask the new buyers to replace the fence. The county has been uncooperative in our push to get the shed removed and said the common fence is not in violation, just the shed. But if the shed ruined the fence, shouldn't the current owner be responsible?

Thank you in advance for any help regarding this matter.
 


tranquility

Senior Member
Since both owners have responsibility for a common fence (absence negligence) and the county does not find the fence to be in disrepair and the guy is going through a short sale on his home and probably doesn't have much money anyway, let it go. What do you think the most likely result is? Even if you win, I suspect you won't collect.
 

CA94523

Junior Member
Thanks for your reply - he built an illegal shed and ruined the fence due to this illegal shed. He should have to pay something don't you think? I shouldn't have to just "let it go" don't assume that someone is not well off because of a short sale - I know his profession and he has this property as a rental - he is quite well off -
 

Zigner

Senior Member, Non-Attorney
Thanks for your reply - he built an illegal shed and ruined the fence due to this illegal shed. He should have to pay something don't you think? I shouldn't have to just "let it go" don't assume that someone is not well off because of a short sale - I know his profession and he has this property as a rental - he is quite well off -
He's not going to be allowed to do a short sale if he's well off.

I agree, he should have to be responsible for his actions. Sometimes what should happen isn't what actually happens. Sorry.
 

tranquility

Senior Member
Thanks for your reply - he built an illegal shed and ruined the fence due to this illegal shed. He should have to pay something don't you think? I shouldn't have to just "let it go" don't assume that someone is not well off because of a short sale - I know his profession and he has this property as a rental - he is quite well off -
The county does not find the fence ruined. You have a shared responsibility for a shared fence--by law. Simply because a shed is "illegal" does not mean it would result in liability for the fence.

Sue if you'd like, but the outcome is uncertain. If you get the outcome you want, payment is uncertain.

Info edit:
California Civil Code §841.2
841. Coterminous owners are mutually bound equally to maintain:
1. The boundaries and monuments between them;
2. The fences between them, unless one of them chooses to let his
land lie without fencing; in which case, if he afterwards incloses
it, he must refund to the other a just proportion of the value, at
that time, of any division fence made by the latter.
 
Last edited:

CA94523

Junior Member
Thanks for all the replies. The County can only make violations regarding the illegal shed and ask for it to be removed. The fact that he used the fence to anchor his illegal shed implies to me that he caused the disrepair and should be responsible.

My initial question though is I am suing him now - he now plans on selling his short sale and closing escrow before our court date - can I still sue him for replacing the fence after he sells his home? Our court date has been postponed until January and I am pretty sure he will close escrow by then. I'm trying to figure out if I can sue him after he sells his house.

Thanks.
 

tranquility

Senior Member
Thanks for all the replies. The County can only make violations regarding the illegal shed and ask for it to be removed. The fact that he used the fence to anchor his illegal shed implies to me that he caused the disrepair and should be responsible.

My initial question though is I am suing him now - he now plans on selling his short sale and closing escrow before our court date - can I still sue him for replacing the fence after he sells his home? Our court date has been postponed until January and I am pretty sure he will close escrow by then. I'm trying to figure out if I can sue him after he sells his house.

Thanks.
Your suit would be for negligence. If you could prove negligence, you would have to "join" the new owner of the property as a necessary party because any recovery would go to both of you. The other side will move for summary judgment on the statute provided. (If he had moved out.) If the court were to find there was no negligence, you would be subject to countersuit for malicious prosecution.

See an attorney. This is not going to be an easy small claims lawsuit because of the many issues involved, including the concept of "disrepair".
 

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