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Can I Tear Down and Replace a Shared Fence Without Permission Form Neighbor

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  • 04-15-2011, 07:35 PM
    joannalmt
    Can I Tear Down and Replace a Shared Fence Without Permission Form Neighbor
    My question involves personal property located in the State of: califorina

    I have a shared fence in disrepair along a shared property lines. The fence is falling down. I am willing to replace the fence at full cost but my neighbor does not want me to do so. She stated that the other neighbors might get ideas and want to replace their fences. I do not want to place a new fence next to one that is falling down, can I take down the fence and replace it without her consent?
  • 04-17-2011, 03:57 PM
    Mr. Knowitall
    Re: Can I Tear Down and Replace a Shared Fence Without Permission Form Neighbor
    Quote:

    Quoting California Civil Code, Sec. 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.

    Is the issue that the fence can be repaired, but you want to incur the higher cost of replacement and cannot get your neighbor to agree? You can make a claim against your neighbor under Civil Code, Sec. 841, but if you choose to replace a fence that could be repaired or choose to replace a fence with one that's more expensive than a fence equivalent to the one that has historically been used, you run the risk that a court would make you responsible for the additional cost beyond what was necessary to maintain the existing or an equivalent replacement fence.
  • 04-18-2011, 10:44 AM
    eapls2708
    Re: Can I Tear Down and Replace a Shared Fence Without Permission Form Neighbor
    If you are not concerned about your costs, then generally, yes you can tear it down as long as you immediately replace it with a fence of equal or greater value. What fully constitutes value may depend upon the situation there. Factors beyond material costs to consider may be views, containment ability, durability. There may be other factors. Consider what the current fence is used for to make these judgements.

    If you are concerned about being reimbursed for the costs your neighbor rightly should pay, as Mr. Knowitall said, you will likely only be entitled to 1/2 of the cost of labor and materials to replace the existing fence with like materials, or if the fence is repairable at a lesser cost, 1/2 of that cost. Anything above that is on you unless the neighbor then upgrades all her other fences to match your new one. That seems unlikely in the situation you describe.

    If you do not already have surveyed boundaries, I suggest getting a survey done to ensure that your new fence is placed on the correct line. If you have not had a survey but are satisfied with the location of the existing fence, simply put the new one in the exact same location. However, without having a surveyed line, you risk having to live with this line even if at some point in the future you find by survey that the true line was elsewhere.
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