**  A second window aside called by the
She-philosopher.com page, entitled
“To the lawmakers responsible for California Assembly Bill 1404,
the Good Neighbor Fence Act of 2013”  **

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[ An HTML transcript of e-mail sent on 19 July 2016 follows, with sender’s and copied recipients’ contact data removed to discourage spam. ]

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Subject:  AB 1404, Chap. 86, Stats. 2013
From:  Gershenzon, Leora <...>
Date:  7/19/2016 6:20 PM
To:  Deborah Taylor-Pearce <dtp@she-philosopher.com>
CC:  Neves, Gina <...>, Smith-Davis, Alexandria <...>

Thank you for your inquiries to our committee and your patience during our intense legislative deadlines. First, I need to let you know that I cannot provide any legal advice to you and I cannot comment on your case or why the judge ruled the way he or she did. The best way to challenge a court decision with which you disagree is by appealing the decision, although in small claims court, the plaintiff (who has chosen the small claims forum) generally has no right to appeal.

That being said, here are our responses to your specific questions:

 

1. If Cal. Civ. Code § 841(a) does not apply to subdivision boundary fencing, to what does it apply?

The specific language of the statute provides that Civil Code Sec 841 applies to adjoining, private landowners and any fencing dividing their properties. If subdivision boundary fencing is determined to be a fence dividing the property of adjoining, private landowners, then Civil Code Sec 841 would apply.

 

2. What part of AB-1404 covers subdivision boundary fencing that was located by the developer 21 inches back from the subdivision boundary line?

The statute does not specifically address a fence located 21 inches back from the property line. The language in the statute refers to "the boundaries and monuments between" adjacent private property owners, as well as "any fence dividing their properties." Since the statute does not specifically state whether it applies to a fence located 21 inches back from the property line, a court would need to determine if a fence 21 inches from the property line constituted a fence dividing the properties.

 

3. Why are issues relating to enclosure, and unlawful enclosure, not addressed by AB-1404?

AB 1404, which repealed and added Civil Code Sec 841, does the following:

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.

Anything else relating to fencing or enclosure of property was not addressed by AB 1404.

 

4. What protections from predatory neighbors do I, and others like me, have under the new law?

Civil Code Sec 841 provides a rebuttable presumption that adjoining private property owners gain an equal benefit from any shared fencing that divides their properties, unless otherwise agreed to by the parties in a written agreement, and provides a mechanism for a landowner who incurs costs for the construction or maintenance of a shared fence to seek a reasonable contribution from his or her adjoining private property owner. That is all it does. As of this point, there appears to be no published appellate court cases further interpreting this code section.

The previous version of the statute provided 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."

If you do not think that the new law provides sufficient protection between property owners then one course of action is to seek new legislation to change the law. Your State Senator or Assemblymember may be interested in any legislative proposal you may have.

 

I hope that answers your questions. Please let me know if I can be of further assistance.

Leora Gershenzon • Deputy Chief Counsel • Assembly Judiciary Committee
1020 N Street, Room 104 • P.O. Box 942849 • Sacramento, CA 94249-0001
[telephone number + fax number + e-mail address]