Fence Dispute in San Diego

[OldFrenchy]

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

I am a new poster to this site, so Hello all!


I live in the City of San Diego. My property lines were recently surveyed. My neighbor's house is adjacent to mine by about 10 ft. Her property is slightly elevated above mine, separated by a collapsing fence. The new property lines actually fall onto my existing property but that is fine. We are in agreement with the survey. She has a pool placed about 15 ft from the fence. She has no gutters on the roof, and the roof slopes towards my property with the edge of the roof being 3 ft. from the fence. When it rains (infrequently being San Doiego), or when she has a pool party, the water flows onto my property and floods the crawlspace under my house where it sits and becomes mildewy.
We had agreed to replace the fence separating our properties by building a small 16" block retaining of wall directly on the property line to contain the water seepage, and we would share it to build individual fences, one facing her side, and one facing mine. The block wall would be about 10" high on her side.
After I had hired someone to do the work, she had her son-in-law come over to tell us that she did not want to see the block wall, she no longer wanted to be a part of the project and that the block wall had to be placed inside my property. She also stated she was not going to share the costs, and that she was going to build her own fence at a later date. She denies that any water flows onto my property from hers.

Question: What is her obligation in a situation like this? Does she need to bear some of the cost, and can I insist that the block wall be a shared entity? The reason for the wall, from my perspective, is to prevent flooding onto my property.

Thanks for any response in advance!
OldFrenchy

[eapls2708]

Start with reference to CA Civil Code §841.

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.


You need to determine if the existing fence between you is a boundary fence for purposes of this code. Note that the law does not require that a boundary fence, for purposes of maintenance responsibility, be precisely on the property boundary line. Is her property otherwise similarly enclosed? If so, she and you share joint responsibility for the upkeep of the fence. That doesn't necessarily mean that she would need to incorporate changes in a new fence/wall to alleviate the water problems (depending on other particulars of your situation), but it does obligate her to pay half the cost of repair or replacement of the fence using materials similar to what it consists of now.

It might be apparent to you, but is it obvious that the water causing your problems is coming from your neighbor's property? Would it be obvious as shown by photos (something like dirt or other debris washed across and deposited on your yard, washouts like mini stream beds leading from her yard toward your house, etc.)? Was one house built earlier than the other or were they built about the same time? If your house was there first, do you have any way of demonstrating that you did not have problems with water pooling under the house prior to your neighbor's house being built? If your house came later, then the waterflow may have been a pre-existing condition that you will have to solve without her cooperation if she no longer wishes to participate. If they were built about the same time and there was been no additions to her home or landscaping which would have changed surface flow conditions, then the problem would have existed since the homes were built and the developer should have been responsible for correcting the condition. Since it's been long enough that the fence is not collapsing, it's well beyond the statute of limitations for such construction defects, so it's too late to have the developer deal with it.

If it is important to you to determine who is responsible for the water, you may need to hire a civil engineer to be able to show by reliable and objective means where the water causing your issue comes from. But the cost of that might be as much or more than just installing some french drain near your side of the property line to catch and divert the water.

I'm a little concerned about your statement that the "new property lines actually fall onto my existing property". When surveying an existing property (as opposed to creating new lots by dividing a property), the surveyor's job is to locate the lines in the same location where they were originally established. Is your statement based on a presumption that the existing fence had been built on the property line, or did you have some other basis for your belief of where the lines of your "existing" property were?

[OldFrenchy]

Eapls2708-

Thankyou for your prompt and informative reply!

You are correct that I would have to show the burden of proof with my claim of water runoff. There are no obvious rivulets or erosion that would indicate direct runoff, but when we dug a 3ft. x 3ft. deep hole in the impervious, rocky soil for an avacado tree by the fence, the hole filled up with water (from whence we knew not where at the time) and testing it with a home pool kit showed it to contain a high level of chlorine. Not really submissible evidence, but we informed the neighbor at the time and she said she would stop the kids from cannonballing in the pool.
My house, and my neighbor's house were both built at the same time in the late 50's. My wife and I purchased the house (which was in a great state of disrepair) about 5 years ago. The neighbor's fence is about 20 years old, riddled with termites, and sagging towards my property. The fence was built by her ex-husband, who was apparently careless of the property lines as he also built a back fence which was 3ft off the easment. All of that is now corrected by the surveyor (to my chagrin). I assumed that the existing fence reflected the original property line.
As we have a common boundary, is she not obligated to participate in the cost of the fence? Would her demand that it not encroach on her line (our line) be a way to avoid paying as she could claim that I built my own fence on my own property? I'm putting up the little wall to stop the water, regardless of her claim. How might I proceed so as to involve her in the mutual cost? I started the job and purchased all the materials with her verbal agreement when she did a 180. Would I have to mediate this in the court, or through the city?

Thanks again for your input!

OldFrenchy

[eapls2708]

Her ex built the fence, and built similar fence around other portions of their property, right? That would seem to establish that she has responsibility for the fence. Whether it is shared with you or hers alone depends upon whether your lot is also enclosed by fence or other barrier typically used to enclose a parcel (fence, wall, dense hedge row, ...). If both are enclosed, it would most likely be considered a boundary fence for the purposes of CC §841. I would have some question about it because it sounds as if the ex didn't make a reasonable attempt to place it on or along the property boundary and placed it (either intentionally or unintentionally) fully on his own lot.

Depending upon how much it would cost, you may be best off just moving forward and taking care of the water issue yourself as a legal battle over whose responsibility it is would cost well more than the cost of having an engineer inspect it & recommend a remedy, and then having that remedy installed. With the condition existing since the 1950s (or lacking the ability to effectively demonstrate that it didn't), getting a court to see it as anything but an existing condition and assigning responsibility to anyone else seems iffy at best.

With the fence, you probably fare a better chance of being able to recover 1/2 of the reasonable costs to install a new one (of like materials to the existing) in small claims if necessary if you have to get it installed on along the property line without her participation. It would be a very good idea to consult with a local attorney prior to deciding what to do or how to go about it.

Check your PM.

[OldFrenchy]

Thank you Eaples2708 for your timely and excellent advice!

The update is that my neighbor has come over and apologized, and has requested to go back to the old plan. She is losing her job, and I am sympathetic, and told her to delay her costs until she could pay (I know- I may never see it) but having cooperative neighbors means a lot to me.

There may be more dispute to come as I have already had the concrete cut on my side in the front to install a partial fence extending halfway down to the sidewalk there, effectively blocking the view of the many cars that park on her driveway. She does not want it, but I am going ahead with it as the work is started and it is on my property. It is discrete, but a new addition to the landscape.

Thanks again!
OldFrenchy