Fence damage caused by uphill neighbor

[alameda]

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

A common redwood fence shared with my uphill neighbor started showing evidence of rot several years ago. I asked them to clear away the soil that was in contact with it. Despite repeated requests to do something about this, they took no action. The fence continued to deterioate in the locations of the soil contact to the point that some of the post and supports have completly rotted at the base and now the vertical planks are starting to fall out.

Awhile back I suggested the fence be completely replaced and I offered to pay 1/3 and asked them to pay 2/3. While I feel that they are 100% responsible for the damage and should really pay for 100% of the replacement cost, I was making an allowance for the fact the fence is a little over 20 years old and I have benefited from it. The unrotted sections are in reasonably good shape and have many years of useful life left. My other suggestion was for them to replace only the damaged areas and they pay all the costs for that.

They refuse to pay or do anything.

Are they responsible for all costs to fix the sections damaged by using the fence as a retaining wall?

If they still refuse to cooperate after giving them a formal demand letter, what is the best way to proceed? Get the fence repaired and take them to small claims or what?

 

[divgradcurl]

California law makes neighbors equally responsible for maintaining a fence between the two properties. See California Civil Code section 841.

Best bet is to have the fence repaired, and then take them to small claims court. At a minimum they will be responsible for half of the repair cost; however, if you can show evidence that something they did to the fence caused more than the usual amount of wear and tear, you may be able to convince the court to award you more than half. However, if the fence is 20 years old, it is unlikely that anything the uphill neighbors did or didn't do would significantly impact the lifetime of the fence at this point.

In the future, if the neighbor is doing something that causes dirt or other debris to build up on the uphill side of the fence, correspond with the neighbor in writing, using a return receipt or some sort of other proof that they received the letter. You can't prove negligence unless you can prove that they were on notice of the issue.

 

[alameda]

Thanks for your input.

I have photos that pretty convincingly show that the dirt in contact with the wood on their side has caused the damage and I can also show that sections of the fence that are in good shape are clear of dirt or othermatter that can lead to decay. The good sections of the fence could easliy have another 10 years of life left.

What is required to establish neglignce? I have correspondence regarding this issue which they replied to, that is two years old. It references "requests going back several years to do something about this" without being specific as to how many years. Their reply to this did not dispute my claim. They agreed to "clear away the leaves" and my replry back advised them that it was the dirt and their ground cover that needed to be remvoed. If I attempt to prove negligence, do I proceed in thre same way (small claims court) but ask for full reimbursement?

Thanks
Ben

 

[divgradcurl]

Thanks for your input.

I have photos that pretty convincingly show that the dirt in contact with the wood on their side has caused the damage and I can also show that sections of the fence that are in good shape are clear of dirt or othermatter that can lead to decay. The good sections of the fence could easliy have another 10 years of life left.

What is required to establish neglignce? I have correspondence regarding this issue which they replied to, that is two years old. It references "requests going back several years to do something about this" without being specific as to how many years. Their reply to this did not dispute my claim. They agreed to "clear away the leaves" and my replry back advised them that it was the dirt and their ground cover that needed to be remvoed. If I attempt to prove negligence, do I proceed in thre same way (small claims court) but ask for full reimbursement?

Thanks
Ben

If you have evidence showing that you put the other party "on notice" of the defect, and they did nothing to mitigate that damage, that may be sufficient to impute negligence to the other side. Google negligence to learn a little more about it -- basically you would need to prove that he had a duty to keep the fence in good repair (you would use Cal Civ C. 841 to support this proposition), he breached that duty by allowing dirt to pile up and doing nothing to remedy the situation, and damages, which are obvious. You need the notice to show that he breached his duty -- if he didn't know about the problem, then you have the uphill battle of proving that he should have known about the problem, etc.

All that said, it is unlikely that you will recover all of the costs of repair. You are legally responsible for maintaining the fence, and the fence by your own admission is 20 years old, and maybe had another 10 years of life but for the dirt piled up on it. He will have to pay his half to replace the fence, and if you can prove negligence, you may be able to get the court to find that he is responsible for some of your share due to negligence -- but the court would be unlikely to award you a free, brand new fence, when all you are really entitled to is a 20 year old fence in good repair -- in other words, the court won't be likely to put you in a better position that you would have been if he hadn't let his dirt pile up.

Either way, gather your evidence, repair the fence, and then ask him to pay for whatever you think is reasonable -- maybe 2/3's of the cost. If he refuses, then sue him in small claims court.