Dispute Over Fence Height

[pmm]

My question involves real estate located in the State of: California

I purchased my house in 1999, my neighbor to the South purchased his about 2 years later. There was an existing fence separating our properties which was probably built about 20 years ago. Over the years the fence has weathered and been eaten away at by termites. Over a year ago my neighbor and I began talking of replacing the fence. I wanted a 6 foot privacy fence and he wanted 5.5 feet, I agreed to 5.5 feet. We also agreed to use the existing post holes to make things easy, as we didn't want to dig additional holes and figured that the fence was on the property line. There was no disagreement here. You know where this is going now. This past fall we removed the fence and while away on a trip my neighbor concreted most of the posts in the existing holes and began erecting the 2 x 4's to hold the vertical planks. During this time the city inspector paid a visit and asked if he had a permit for the fence. We did not. When I returned from my trip I joined in to help with the remaining few posts, he said that he has changed his mind and wanted it lowered to 5 feet as his wife could not see over the fence while she was sitting at the kitchen table. That is kind of the point of the fence, privacy. I was not okay with this as this fence was to be for privacy and safety as his kids shoot BB guns and I didn't want stray BB's flying over a lower fence. I reminded him of our agreement, he demanded that the fence be 5 feet. A few days later I put up all the vertical planks at 5.5 feet, on my side of the fence, as we had agreed. Mysteriously the inspector stopped by, again, this time "red tagging" the operation. The fence was already completed. I found out that my neighbor had made the call to the city to complain on the very fence he agreed to and helped build. ??? The inspector said just to go to the city and apply for the shared fence permit, pay and everything would be okay. I went to the city and applied for the permit however my neighbor refused to pay and sign for the permit. My neighbor now wanted to survey the property to determine the property line. A few weeks go by and the survey company comes out and does their thing with out of date survey equipment, I saw the dates on one of the GPS units. We find out that the property line criss crosses the fence. Did I mention that there are retaining walls as our property is about 6 feet lower than our neighbors? So that complicates things a bit. Fast foward a few months and I come home yesterday to my neighbor sawing off about a foot off the top of the fence. I approach him and ask him what he his doing. He tells me that the fence is on his property and he is cutting the fence. I remind him that those are my planks, I paid for, put up and they are on my side of the fence. He continues with the fence is on his property and he will do what he wants. Remember the property line crisscrosses the fence, my guess going by the markers in both the front and back yards, about halfway.


Questions:

Isn't this fence considered shared as the survey shows the property line crisscrossing the fence?
What gives him the right to vandalize my work?
How about the out of date(callebration date) GPS survey equipment?
Any additional thoughts?

I thank you in advance for your professional input.

[Mr. Knowitall]

Whether or not the fence is shared doesn't resolve either the fact that you need a permit, or resolve the dispute over the fence height. It sounds like you'll be better off relocating the entire fence to your side of the property line and calling it yours, obtaining a proper permit to do that work. If you don't think the survey you obtained is of sufficient quality, you can try to resolve your concerns with the surveyor or commission a survey through a different company.

[eapls2708]

Questions:

Isn't this fence considered shared as the survey shows the property line crisscrossing the fence?

Yes. Here is the section of the CA Civil Code pertaining to that. I also included the next section, which pertains to fence heights as a nuisance (spite fence law) for your reference, although it does not seem to be applicable in your case:

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.

841.4. Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. Any owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance prescribed in Title 3, Part 3, Division 4 of this code.

What gives him the right to vandalize my work?

Nothing. Get advice from a local attorney as to whether there is any value with charging your neighbor with malicious destruction. Small claims may be the most appropriate course of action to get reimbursement for the cost you incurred for materials and installation (only out of pocket $ paid for installation, you cannot claim for the value of your time). My advice is always to first try to work things out because you have to live next to each other for as long as you both choose to stay. Law suits tend to permanently take the neighborly out of being neighbors, where reasonable peolple coming together to find agreeable middle ground can often strengthen ties between neighbors.

How about the out of date(callebration date) GPS survey equipment?

This probably means nothing because any systematic error that may have accrued in the equipment due to overdue calibration is not very likely to be significant relative to the precision required for the measurements in a boundary survey. The surveyor could have used a steel tape and a transit built around 1900 and performed a survey of a typical neighborhood lot that is just as accurate and just as valid as one performed with a set of brand new, recently calibrated GPS receivers. GPS is simply another measurement tool at the surveyor's disposal that is the best tool in many circumstances, and not as good as older technology in other circumstances.

The calibration date may or may not be significant. If the surveyor has developed a system to verify his equipment performance against a known baseline and does so on at least a fairly regular basis, the frequency of the manufacturer's or distributor's calibration is almost meaningless. If the equipment has been neither calibrated by the manufacturer or distributor nor checked against a line of known distance in several years, it may have developed errors in reducing the radio wavelengths to distance quantities that may be significant. In practice, many surveyors who have practice in particular geographic areas have measured between much of the primary monumentation for different sections and subdivisions of land using a variety of different technologies and so have occasional opportunity to check their measurements between certain monuments against their previous measurements. While that does not take the place of calibration, it does provide a rough check of sorts to ensure that no significant mechanical or electronic errors have developed in the machine they are using.

The most common sources of error in placement or re-establishment of a boundary location is incorrect analysis of boundary evidence or incomplete gathering of evidence by the surveyor. These sort of errors are less common on surveys of properties in relatively recent subdivisions where controlling monumentation and reliable mapping of the original subdivision are the norm. These errors can more readily appear in older subdivisions (pre WWII and earlier) where original controlling monumentation is scarce, difficult to find and identify, or non-existent.

You say that the line identified by the surveyor "criss-crosses" the fence. More likely, it is the other way around, that the surveyor found existing corner markers or reset new corner markers (most commonly a metal pipe or rod, 1" or less in diameter with a plastic or metal cap or brass washer affixed to the top) at the ends of the line and mapped a straight line between, showing the minor variations from a precisely straight line, or slight zig-zag that his measurements found the fence to follow. If the fence, or some portion of it is on or within a few inches of the line, then for all practical purposes, it is on the line and counts as a shared boundary fence per Civil code §841.

The fact that the survey essentially agrees with the previous fence placement suggests to me that there are no significant errors from measurement or analysis in the survey and that it is most likely reliable.

Any additional thoughts?

Yes. It seems that you and your neighbor are now gearing up for a fight by either escalating or contemplating escalating your point of disagreement. You initially were cooperating in building the fence and had made a reasonable compromise as to fence height, splitting the difference of the desired height. You guys were on track before your neighbor let his wife push him into doing a couple of really regrettable (I'm being a little kind here) actions in calling the City inspector on you and damaging the materials you paid for. I hope you still have the receipts for those materials.

If it were me, I'd plan on meeting with the neighbor, point out that section of Civil Code, remind him that you two had an agreement and that you had paid for the materials. Tell him that you would much rather go back to the previously agreed compromise, get the permit and have the fence as agreed than have to take legal action by taking him to small claims to get reimbursed for the cost of the boards he damaged and/or to file charges against him for malicious destruction of your property. But run that by a local attorney first. Paying for an hour of consultation and perhaps a letter on your behalf may pay off in avoiding larger problems later. Your neighbor was acting reasonably at first. Most reasonable people, when faced with a real possibility of legal problems and the cost that can go with it, will decide to go back to being reasonable rather than make things worse for themselves.

I don't like the idea of dualling fences along a property line. As a surveyor, when I show up on a project site and I see that situation, I immediately know that either my client or his neighbor (or sometimes both) will cause difficulties and is someone I would much rather not deal with. I always hope that it is not my client who is the difficult person.

However if privacy and/or safety (BBs over the fence) become a real issue, then a fence or elevated screen (fence posts supporting a "fence" of lattice or boards that begins 4' or 5' above the ground and goes up to 6' or 7') may be your most viable and trouble free way of achieving what you wanted in the first place.

You mentioned that there are retaining walls. From your description it seems that your neighbor's house is on the high side of those walls. I'm picturing the top of wall being at or near their yard/main floor level, and near the same level as the tops of your doors. If that's the case, they wouldn't have any grounds for complaint under the spite fence law. If it were the other way around, then the combination of a 6' fence on top of a 6' wall that they are already looking at the face of might trigger their ability to complain based on that law.

I thank you in advance for your professional input.

Your welcome. I really hope that you can convince your neighbor to come around back to a reasonable compromise. Good luck.

[Mr. Knowitall]

You're completely missing the fact that there is no agreement on the height of the replacement fence, and that the construction to date was conducted (possibly at first mistakenly, but subsequently quite knowingly) without a permit. The cost of litigating this could easily exceed the cost of the fence, with no guarantee of a better outcome. (But if pmm wants to explore the possibility of litigation, there are plenty of lawyers who are happy to earn an hourly fee, and many will provide a free initial consultation.)

[eapls2708]

You're completely missing the fact that there is no agreement on the height of the replacement fence, and that the construction to date was conducted (possibly at first mistakenly, but subsequently quite knowingly) without a permit. The cost of litigating this could easily exceed the cost of the fence, with no guarantee of a better outcome. (But if pmm wants to explore the possibility of litigation, there are plenty of lawyers who are happy to earn an hourly fee, and many will provide a free initial consultation.)

I didn't miss the point about disagreement over fence height at all. that's why I referenced the original compromise height several times. I didn't miss the part about no permit either. Each had a hand in building the fence unpermitted, and the dispute was not fence/no fence, or even about location. Permit or no permit, the materials had value that was diminished once cut down to the height the neighbor wanted. Note that the neighbor damaged the material to fit their desired height - still a permit violation, and did not move to remove the fence in order to not be in violation of construction without a permit. The situation is not of one neighbor violating a permit and the other being upset about that. They each wanted the fence, and took action to construct the fence they wanted, regardless of permit status. The neighbor apparently made the alteration to height after the red-tagging. Does that make a difference?

I really don't know what difference the permit makes with regard to this dispute and the value of the materials. I doubt any, but maybe it does.

Also note that I urged a solutions that avoid litigation before considering small claims for the value of materials, and advised avoiding more expensive litigation. So I'm not sure what you think I missed or what you think I suggested that might involve expensive litigation (???)

[pmm]

Thanks for your responses.

Eapls, you got it right. The permit has never been the issue. We agreed to the the height , placement and expenses of a shared fence. After we were about halfway through the project my neighbor decides he wants a lower height than we agreed on. Several months later I catch him cutting about a foot off the top of the fence, which is all my material.

The original issue was the height and since I was unwilling to compromise again on the height, he decided to get a survey. Now we have issues with the fence that bisects our new found property line about halfway. And lastly the issue of my neighbor cutting the top foot off the fence. I have not decided on a course of action yet as my neighbor was approved for a permit on the fence that he claims is entirely on his property, it is obvious that about half is on his side and the other on mine. The city is invovled now and my neighbor needs to prove his claim or it becomes q shared fence.