**  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 15 August 2018 follows, with recipient’s contact data removed to discourage spam. ]

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Subject:  Re: Neighbor Encroachment
From:  Deborah Taylor-Pearce <dtp@she-philosopher.com>
Date:  8/15/2018 10:39 PM
To:  Ryan Trabuco <...>

On 8/14/2018 12:18 PM, Trabuco, Ryan wrote:
> In regards to AB 1404, I am trying to understand
> how the current law is inhibiting your private
> property rights so I can best relay that to the
> Senator. What specific change, or changes, would
> you propose?

I’m not sure what more I can say here, that I haven’t already said several times before; e.g., see pp. 5-6 of my 8/13/2018 letter to Senator Atkins:

https://she-philosopher.com/SCCcase/dtp-to-SenatorAtkins_2018-08-13.pdf   [direct link]

https://she-philosopher.com/SCCcase/comments-on-AB1404.html#Follow-Up-No28   [indirect link]

FWIW, I’ve been thinking and writing about Cal. Civ. Code § 841 since 2011 (when the neighbor encroachment first occurred), and I still don’t really have a handle on things, because no one in the legislature will explain their decision to omit all explicit reference in the new law to matters of enclosure/illegal enclosure (see No. 2, p. 5 of my 8/13/2018 letter to Senator Atkins for a copy of the only information I have been able to obtain on the subject).

I find the underlying issues (vis-à-vis rights & obligations) very complex, and wish I could give you a nice executive summary with which you can brief your boss in a few minutes, but I can’t.

And honestly, I’m not even sure that I should. Do we really need more legislation enacted, without careful deliberation, by way of executive summary (see the legislature’s 5! highly-repetitive, superficial analyses of AB 1404 I copied out for everyone’s convenience here:

https://she-philosopher.com/SCCcase/comments-on-AB1404.html#legislative-analysis-of-AB-1404   [indirect link]

) which legislators then rubber-stamp without understanding the details (and full implications, because the devil is always in the details! ;-) of what they’re voting for?

I get that we’re all very busy (I myself mostly work to deadline, 12-to-14-hr days, 7 days/week) ... but crafting effective legislation that achieves the desired outcomes is your job (not mine!) and if it means that legislators have to wade through a ton of paperwork (which somebody in Assemblymember Maienschein’s office complained about a couple of years ago, when I had far less documentation posted to my website than I have now! ;-) so be it.

If we’re generating more laws than legislators can responsibly handle in a session, then something is really wrong with the whole system (and IMO, this is the cancerous “corruption” we should all be worried about).

If refashioning, and then improving, the law re. neighbor fencing is so difficult for California legislators, how on earth do you plan to enact responsible single-payer legislation for the state that doesn’t bankrupt us and completely destroy the health-care system we have now (which, bad as it is, at least works for some of us, if not all)? I shudder to think what kind of future the legislature has in store for us when it comes to life-and-death issues of such social and economic consequence!

... But, back to AB 1404....

Let me at least try to give you a more focused answer to your question about “how the current law is inhibiting your private property rights”....

Because of AB 1404, there is no longer any legal requirement that landowners in the adjoining subdivision maintain their subdivision boundary fencing. (That language was repealed and replaced by AB 1404.)

As such, the judge in my small claims court case narrowly interpreted the new Cal. Civ. Code § 841 language which reads:

“Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.”

to apply only to fences that are required by law (and the subdivision boundary fencing erected by the developer of the adjoining subdivision has never, as far as I know, been required by law in the same way, e.g., fencing around a swimming pool is).

Moreover, the judge ruled that where 2 boundary fences exist between subdivisions, as in my neighborhood, landowners in the adjoining subdivision are free to remove their fences, and use our private fences — at least 3 homeowners on my street, in my subdivision, have fences at our subdivision’s western boundary line that are located on private property, rather than on the “shared” subdivision boundary line — to enclose their properties.

Further, the judge ruled that landowners in the adjoining subdivision do not need our permission for this, or to pay us for this, because our fences are “just there,” ergo what they are doing is not an active “use” of our private fences in any legal sense of the word, nor do commonsense arguments about fence “benefits” (as in my claim that adjoining landowners “benefit” unfairly from their free-loading use of my private fencing) apply in the new legal context.

I am not a lawyer, so I am unable to give you a better summation of the judge’s legal opinion (which, quite frankly, I found strained and arbitrary), but the entire proceeding was recorded, and the record should be available from small claims court, depending on how long they keep such things, should you wish to peruse it.

To sum up, here’s what I want:

1. that landowners in the adjoining subdivision maintain their subdivision boundary fencing, along with the engineered grade (a 21-inch clearing established by the developer of their subdivision) separating our subdivisions from 1975

or

2. if I continue to be forced, against my will, to share my “cadillac” private fencing with predatory neighbors in the adjoining subdivision, I want to be paid a decent rent for this — one that fairly compensates me for the loss of rights & “benefits” I would have derived from the private use of my private fence were I still in control of my own private property.

As it stands now, I can achieve neither of these outcomes through small claims court (or the threat of another small claims court action) until California state legislators fix Cal. Civ. Code § 841, which they so weakened in 2013 with AB 1404 that my private property (and that of others in a similar situation) is no longer protected from neighbor encroachment.

IMO, at the very least, a good fix would:

1. add back in language re. enclosure (making the kind of illegal enclosure engaged in by predatory neighbors in the adjoining subdivision to mine a clear violation of the state code)

2. deal with the unique set of issues posed by double division fences

3. apportion rights & obligations re. private as well as “shared” fencing

4. deal with neglected issues of enforcement. E.g., I sent 2 letters certified mail, followed by 6 invoices (with copies posted here:

https://she-philosopher.com/SCCcase/comments-on-AB1404.html#demand-letters

and here:

https://she-philosopher.com/SCCcase/comments-on-AB1404.html#invoices

), to the predatory neighbor I sued in small claims court, giving her business-style payment schedules and ample time to adjust her course of action and make better choices, before suing her, only to have the judge disregard all of this because the predatory neighbor never signed a formal rental agreement, which the judge required in order to issue a judgment against her. Instead of using some generic landlord’s lease, I had written customized agreements relying on the kind of legal language you find all over the Web about how your continued “use” of an app or website or other digital property/service indicates your agreement to the terms of use: and if you don’t like the terms, you are free to stop using the property/service.

This was not good enough for the judge (who had already ruled, based on his interpretation of AB 1404, that the encroaching neighbor was not “using” our fence), so there needs to be explicit language about how an aggrieved fence owner can enforce her rights. In my experience, lawmakers are far too glib about how ordinary folks, relying on small claims court for justice, get the law enforced (by themselves, on their own initiative, let alone by way of state institutions like the police).

You can write truly excellent laws, but if ordinary folks have no way to enforce them, they’re in fact useless.

... So, there you have it.

If I were queen bee, that’s how I would fix the law!

But there are doubtless many ways to restore my protections under Cal. Civ. Code § 841, and I have no intention of telling you how to do your job ... just going to shout out whenever I think you’re not doing it and/or not doing it well!

HTH.

Best wishes,
Deborah
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Deborah Taylor-Pearce
dtp@she-philosopher.com