Line & Fence Laws
Feb. 10, 2022
When you buy a home in California, you pretty much assume that the boundaries, as established by fences and other structures, are in the correct place; however, this is not always the case. After moving in, a homebuyer may get suspicious that something doesn’t look right.
Why is the neighbor’s second-floor balcony stretching over our adjoining fence? Why does our shared fence make a sudden shift in direction?
Boundary disputes are not uncommon in California or anywhere else. Now that lot sizes are shrinking, disputes may become even more acute, and people enjoy their private space.
If you and a neighbor are in a dispute over your property boundaries in Santa Ana, California, contact me at the Martinez Law Office, Inc. I have more than four decades’ experience in practicing real estate law, and I can seek to resolve your boundary dispute.
I proudly serve clients throughout Southern California, including Orange, Los Angeles, and San Diego counties.
Common Boundary Disputes
The most common of disputes involve issues with fencing. Who is responsible for the upkeep? Who should pay? Fortunately, California law, as I will discuss below, is pretty clear on the issue regarding fences.
However, other structures may violate your property as well. An example would be a treehouse on an adjoining neighbor’s tree that may intrude onto your property or a neighbor’s driveway built in violation of your property line.
Line & Fence Laws
California Civil Code Section 842 has a clear message about neighbors and fences: “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.”
In other words, neighbors should share in the cost of erecting and maintaining fences on their boundary lines.
Of course, this may not always be the case, and altercations can emerge. If one neighbor suspects their property is being violated, there are several steps to determine the demarcation lines.
Many lots will have property markers buried six to ten inches below each corner of the lot, and you can use a metal detector and a shovel to locate them. Alternatively, you can use the description in your deed and try to walk out the boundaries; or you can also request a copy of the land survey or subdivision plot from the county clerk’s office.
Principle of Adverse Possession
Even if you do discover that a fence or other structure impedes your property, your neighbor whom you suspect of violating your property’s boundary may have a legal right to it under the concept of adverse possession.
Under adverse possession, your neighbor may have a legal claim to the land being encroached upon if they have used the land for five years and paid taxes on it. The California Code of Civil Procedures Section 325 states:
“In no case shall adverse possession be considered established under the provision of any section of this code, unless it shall be shown that the land has been occupied and claimed for five years continuously, and the party or persons, their predecessors, and grantors, have timely paid all state, county, or municipal taxes that have been levied and assessed upon the land for five years during which the land has been occupied and claimed. Payment of those taxes by the party or persons, their predecessors, and grantors shall be established by certified records of the county tax collector.”
It does not matter if the possession of the land happened because of an honest mistake, was done in ignorance of the proper boundaries, or was done deliberately; therefore, if the possessor is “open and notorious” about it, adverse possession can apply.
Payment of taxes on the land for five years might be a sticking point. Since the passage of Proposition 13, property taxes in California have been calculated based on the purchase price of the home, not on the size of the lot or its boundary lines.
California law prohibits the erection of fences ten feet or higher whose sole purpose is to annoy a neighbor. The neighbor who is the focus of the spite fence – as they are called – has a right to sue for private nuisance. The fence could also consist of trees or hedges situated to annoy.
Tree Trimming Disputes
Trees that hang over a fence or a boundary line into the neighbor’s property can also become bones of contention.
If a tree overhangs onto your property, you have a right to trim the branches, but if the trimming somehow damages your neighbor’s tree, you can be liable for tree damage. Likewise, if you object to tree roots appearing on your property and you pour chemicals on them to destroy them, and the tree is damaged or destroyed, you can be liable.
The civil code provides triple damages for the neighbor whose tree was damaged or destroyed, and there is also a criminal code on tree damage.
The least costly and complicated route to resolving a boundary dispute is through negotiations with your neighbor and, if it fails, you can propose mediation. You can also work with an attorney and send a demand letter to your neighbor to honor your property line. If all else fails, you can take legal action, but remember that the principle of adverse possession always lurks in the background if the property violation has been ongoing.
Reach Out to Martinez
Law Office, Inc. for Help
If a boundary dispute arises, you need to act quickly. Not only is the clock ticking on adverse possession, but once a fence or structure is in place, resolution of the issue becomes more complicated.
If you’re in Santa Ana, California, contact me immediately at the Martinez Law Office, Inc. I can listen to your story, assess the situation, and advise you of your best options. I am proud to represent clients also in Orange, Los Angeles, and San Diego counties.