- We represent the Buyer. The Seller has disclosed that he does not know if the fence with his backyard neighbor is situated completely on the property line. The fence is broken down and needs repair which could be very costly. The Seller refuses to pay for a new fence. The Buyer wants to know: If he closes escrow, who will be responsible for repairing and/or maintaining the fence?
- The answer to that question hinges on whether or not the fence is on the boundary line and, as risk management attorneys have long warned, it is not appropriate for real estate licensees to ever assume, let alone state, that the fence is on the property line (see, for example, the Weekly Practice Tip dated 07/11/03). Only a surveyor can determine the actual location of the property boundaries; a definitive location of the boundaries is the first step in determining who is responsible for maintaining the fence.
Civil Code Section 841 was enacted in 2014 to try to bring clarity to the subject of who is responsible for maintaining the fence when adjoining landowners are private persons or entities who own land that is separated by that fence but the law does not apply if one or more of the landowners are governmental entities. The problem with that statute is that it presumes that the fence is, in fact, the boundary that separates adjoining landowners. If the fence is on the boundary, then the adjoining landowners have an equal obligation to maintain the fence.
Fences are often not on the boundary line; this occurs so often that standard Advisories repeatedly warn about that topic. If the fence is not on the actual boundary line (in whole or in part), the issue of who is legally responsible for maintaining the fence cannot be easily determined by anyone, and real estate licensees should refrain from ever giving any opinions on that legal topic.
In a perfect world, good neighbors are willing to cooperate with each other and they will reach an agreement regarding the costs of maintaining the fence. In the real world, if the neighbors disagree about any issues involving the fence, then they need to retain qualified California real estate attorneys to help resolve the problems. Ultimately, a judge, jury or arbitrator will determine who is responsible for maintaining the fence.
When there is a dispute as to who is responsible for maintaining a fence, the courts use a list of variables in reaching an equitable solution including whether the financial burden to a landowner would impose an undue financial hardship and the reasonableness of a particular construction or maintenance project. Because fences have led to so many disputes between neighbors, it is virtually impossible to state with any certainty who is responsible for maintaining any particular fence.
PRACTICE TIPS:
- Listing Agents should advise Sellers not to state or imply that a fence (or any other man-made structure such as a retaining wall or any natural feature such as a stream) is the boundary line unless they have a survey which specifically depicts the boundary line and the survey should be provided to the Buyer.
- Listing Agents should not pass on any statements or representations from Sellers or Surveyors regarding the boundary lines without using the Attribute-Disclose-Disclaim format to make it clear that the Listing Agent has not verified the information supplied by someone else.
- Selling Agents should not pass on to the Buyer any statements or representations from a Listing Agent or Seller about boundary lines without advising the Buyer that the information may not be accurate and that the Buyer should request a copy of any existing surveys and/or obtain their own survey if that information is important to them.
- If anyone asks about the topic of who is responsible for maintenance of any fence, the best answer is to use one of the following two statements (which should be expressed in a writing such as an e-mail):
The responsibility for maintaining the fence is a legal determination that is based, in part, on whether the fence is actually on the boundary line. Since I cannot determine whether or not the fence is on the boundary line, there is no way for me to definitively state who is legally responsible.
OR
I do not know.
Do not forward to Sellers or Buyers: This Weekly Practice Tip is for the exclusive use of clients of Broker Risk Management and their agents. It may not be reproduced or distributed without the express written consent of Broker Risk Management. The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.
© Copyright Broker Risk Management 2018 01/12/18