Neighbor’s lack of action on propped-up fence deserves registered letter

By From page C3 | September 15, 2012

Q:  You have addressed part of this issue several times before but I’ve never seen anyone continue the line through to the end. The fence between my yard and the neighbor’s yard on one side needs to be replaced. Several 4-by-4 posts are no longer in the ground and the fence has been propped up by both sides for several years. My neighbors no longer live in the house and have been renting it out. I’ve been calling the owners for almost two years to get together and look at options with replacing the fence.

The owner called back about three months ago to find out what I had in mind and talked to my daughter as I wasn’t home. I’ve called back about six times since, with no contact or return calls. I plan on making a decision about the fence and sending him a registered letter with a date for him to reply by. If no response, I understand that my choice is to have the work done then take him to court to sue him for his half. I assume if he goes to court he will say that he doesn’t have the money or it’s his wife’s house or he wasn’t consulted.

What are my options if he doesn’t have the money? Will putting a lien on the house do anything? What if he is going into default and the bank is getting ready to take it back? How can I find out? What papers do I take to court with me and what about paperwork for a judgment recovery? Thanks for any suggestions you can make.

A:  I think you’re right. Over the numerous decades when I’ve written about things like replacing a fence, cutting a neighbor’s tree, etc. I generally left it at something like, “. . . and if push comes to shove you can go to court and get a judgment.”

But of course, a judgment is simply a piece of paper.

To recap for other readers; if a fence exists on the property line between your house and a neighbor’s, and the fence needs to be replaced, the California Civil Code provides that both property owners are  50 percent liable for the costs of replacing the fence.

If the neighbor won’t cooperate, you can pay to rebuild the fence and send your neighbor a bill for half the price. If he ignores you, you can go to court.

But the law requires of everyone that we act reasonably in all things.

Lawyers often make their living arguing in court over what is reasonable. But in this case, giving notice to your neighbor of your intent to replace the fence, coupled with repeatedly trying to get him to come to the table and discuss it, certainly constitutes reasonable conduct on your part.

So let’s pretend you’ve done everything you could do to get the neighbor to cooperate in the replacement of the fence. But none of your efforts have paid off.

So you replaced the fence at a cost of $2,000. My high school algebra (California education) tells me your neighbor owes you exactly $1,000.

So what do you do?

First, make a demand for payment. You can send a certified letter if you think it will help get his attention, but there’s nothing legally significant about it.

Your testimony that you mailed a demand letter to the proper address will be enough.

Then you head off to small-claims court. Small-claims court is really a terrific way to have small problems like this resolved.

There are no lawyers allowed. There are no fancy rules of evidence to contend with. You just show up and when your case is called you walk up and tell the judge your story.

You can give the judge any paperwork and pictures you think would be helpful to your causes.

If the neighbor shows up at all, he’s welcome to do the same thing.

A week or so later you should receive your judgment in the mail.

Now what?

What you have in your hand is an official “I owe you” from your neighbor and signed by a judge. To actually get paid the neighbor can simply give you the payment, or you’ll have to avail yourself of the collection laws in this state.

The specifics are beyond the scope of this column; but your options include putting a lien on any real estate he owns, taking the money right out of his bank account or paycheck, or even getting a court order to take his couch or golf clubs (I emphasis getting a court order first).

Collection laws aren’t really complicated, but there are procedures you have to adhere to. It’s likely you can buy a book or get some information online. Just make sure you are looking at current California law. It’s likely that using Texas collection laws would only get you thrown in jail.

Tim Jones is a real estate attorney in Fairfield. If you have any real estate questions you would like answered in this column you can contact him at [email protected]

Tim Jones


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