Fencing does not necessarily have to be a fence as one typically thinks of it. Fencing can be any sort of boundary between adjoining properties providing a clear division between the two. This can include not only a fence of the various types, but even bushes, trees, or shrubbery can be fencing.
The question of who is liable for maintenance of the fencing on a shared boundary between adjoining properties is often a question that property owners face. This query is easily answered as it is specified in the California Civil Code, Section 841 (a) “Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.”
If neighbors do not wish to share equally in the maintenance, this can be determined by mutual agreement. To be enforceable, this agreement needs to be in writing. In this way any division that is desired can be established, as long as both agree.
Another type of dispute can be over the boundary itself. It is possible that the form of dividing fence was, in fact, in the wrong place and not on the true boundary which divides the adjoining properties. This would cause an encroachment by one neighbor upon the other’s property. Such encroachment does not have to be intentional. The fence line could have been placed in the location accidently, or by a previous landowner which caused subsequent landowner(s) to infer the boundary was in that location. It is even possible the legal description in the Deed states an incorrect boundary to the fact that the property or markers or landmarks used in the legal description have moved over time from forces of nature. These types of disputes are not easily resolved and are very complex. For this reason, resolution of a dispute over the boundary itself should involve an attorney specializing in Real Estate Law.
Encroaching tree branches is another common issue. A tree is the property of the one owning the land that the tree trunk is on, even if the roots extend onto another property. Tree branches that grow over a boundary onto adjacent property can be trimmed by the adjacent property owner, but it must be done so reasonably as to not cause harm to the tree. In addition, poisoning of a tree which is encroaching onto property can result in both civil and criminal liability even though the act was done on one’s own land.
While this may sound extreme, it is by no means a rare occurrence, especially in the high-price neighborhoods of Newport Beach, Laguna Beach, Newport Coast, San Clemente and Huntington Beach where ocean views attribute to the value of the home and neighbors don’t take kindly to that value being depreciated by unruly branches.
California Civil Code Sections 829-835
California Penal Code Section 384a(a)
California Civil Code Sections 840-848
Marmon Law Offices – Real Estate and Business Law, Resolving a Boundary Disput with your California Neighbor