Can a Neighbor Take Down a Fence That Spans the Property Line

[ruthE]

My question involves real estate located in the State of: CA
Our property shares a 8ft tall side wall with a neighbor who would like to replace the wall because they claim in is unsightly and dangerous. We disagree, and do not want to remove the wall. From what we can tell, the wall is on our property for most of its length, and then crosses over to his property. My question is whether the neighbor is allowed to remove a wall that spans the property line, whether they are entitled to remove the portion that is completely on their side - which might compromise the integrity of the wall, and whether they can under any circumstance force us to remove the wall.

[Catmad]

Do you have a boundary survey? Much will depend on the actual, physical location of the structure. Is there anything in your deed or theirs that addresses maintenance of the wall?

[BenT]

As mentioned -locate that stamped survey at your registry of deeds. It will define property boundaries. Anything that is on your side of the boundary line is yours. Anything that is on their side that they don't want is theirs to do with as they please. You can certainly bring the issue up with a property lawyer who can advise and halt things a bit - but for the most part its a clear cut issue in favor of the person who wants the structure removed.

[ruthE]

nothing in the deed about the wall. The survey shows that a portion (~10 ft) are clearly on our side, ~20 ft cross the boundary and 10 ft on her side.

- - - Updated - - -

But can they remove the portion that spans the property line (which is much of the wall) - we have no record of who owns this, as far as I can tell (unless it is somewhere in their deed).

[Catmad]

Have you discussed this with your local code enforcement? There may be statutes that control who may do what with such a situation. If they can't help, this may;

http://www.leginfo.ca.gov/cgi-bin/di...0&file=840-848

At this point, particularly this;

"(b) (1) 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.
(2) Where a landowner intends to incur costs for a fence described
in paragraph (1), the landowner shall give 30 days' prior written
notice to each affected adjoining landowner. The notice shall include
notification of the presumption of equal responsibility for the
reasonable costs of construction, maintenance, or necessary
replacement of the fence. The notice shall include a description of
the nature of the problem facing the shared fence, the proposed
solution for addressing the problem, the estimated construction or
maintenance costs involved to address the problem, the proposed cost
sharing approach, and the proposed timeline for getting the problem
addressed."

Has the neighbor done these things?

I think I would be getting free consultaions with whatever Real Estate attorneys you find available...

[eapls2708]

The fence does not need to be precisely on the property line to be considered a boundary fence physically dividing one property from the other (technically speaking, precise placement on the property line is practically impossible as surveyors' measurements tend to differ and a fence of any material would be wider than a line, which has no width). How and when was your wall built, and by who?

In many parts of CA, particularly in So. CA, the original developers of residential subdivisions built walls as you describe as party walls in lieu of fences. My in-laws' back yard is enclosed just as you describe. Those walls were built by the original developer and in effect are the boundary lines. If your wall was built by the original developer, or was built at some time either by both affected landowners, or by one owner with the permission of the other and they had the understanding that it was for the purpose of providing a physical division of the properties being on or very near the line, it is a boundary fence under Civil Code 841. If it's construction predates your knowledge and your neighbor's knowledge, and there are no records of how, when, why, or by whom, then as long as it is on or very near the boundary, the presumption is that it was intended to be a boundary fence which was built by or with the permission of the affected landowners, and the shared responsibility for maintenance and replacement applies.

One landowner or the other cannot unilaterally remove any or all of the boundary fence unless they replace it with one of similar or superior materials that accomplishes the same ends as the existing fence. In the case of your wall, it is not only an enclosure, but it affords a level of privacy not equaled by most other types of enclosure. Even if they are wanting to replace it for safety reasons, they would have to replace it with another wall or some other barrier that offers the same privacy and enclosure benefits as the existing wall.

If the wall needs to be replaced or repaired for safety reasons, you and your neighbor are equally responsible for the cost of maintenance or replacement. If your neighbor wants to replace it purely for aesthetic reasons and there are no actual safety issues, the cost is on them as is the responsibility to ensure that the new enclosure is equal or superior to the one they remove for all purposes that it was designed.