Q: We recently hired a contractor to install a new fence (a 6-foot concrete block wall) to replace our old wooden fence. I and my three surrounding neighbors have already put a deposit of $1,000 each and the left side wall is already completed and the right side wood fence is removed. Now my neighbor on the right side refuses to proceed with the building of the concrete block wall because he said these blocks are wider than the wood fence so he is losing a few inches of his property line. What makes it complicated is that his house is a bit higher than ours and we have a retaining wall around 4 feet on our property line. So now he wants to build the new blocks on top of the retaining wall and not on his side of property.
The wooden fence was on his side of property originally so the contractor is building this new wall on where the wooden fence once was, and the contractor said he is not allowed to build on top of the retaining wall! So now my poor parents are stuck with a torn-down side with these new blocks in their front yard with this neighbor wanting to opt out from the project. Please help. The cost of the wall is around $2,000. Thanks!
A: This is a tough one. From what you’ve told me, there are two legal issues that jump out.
The first is that the law requires the new fence to be built and the owners of each of the two properties that adjoin it to share the cost. However, there’s nothing in the law that says exactly what type of fence it should be. The only requirement is that it’s a good neighbor fence, whatever that actually means.
The other issue is one concerning the law of contracts.
Remember that a contract is nothing more than an agreement between two or more people that the law will enforce. In this case, there was potentially an enforceable contract to build the cinder block wall.
I say “potentially” because there are some unknowns on my side of the table. Was there ever any discussion between the owners concerning exactly where the fence would go? I agree that it’s reasonable to put the middle of the cinder blocks right where the wooden fence had been. But did anybody talk about it specifically?
By the way, I presume there was no written agreement? Was there a written agreement with the contractor that was signed by the neighbor? If so, the neighbor could likely be held to it.
The neighbor’s defense is that he understood the agreement to mean the fence would not encroach on his property. Therefore, neither you nor he actually agreed on the same thing, even if you both thought you did at the time.
In law school we studied a case in which one farmer bought an infertile cow from a neighboring farmer. (I know it’s not a wall, but stay with me on this.) They agreed on the price and the cow was delivered. Shortly thereafter it was discovered that the cow was pregnant with a calf. Now pregnant cows were apparently worth a whole lot more money than an infertile cow.
So the farmer who sold the cow came back and wanted more money. When the buyer refused, the seller took it to court.
The appellate court decided that both parties were mistaken about the condition of the cow and therefore there could be no agreement about what was being sold, a legal concept called mutual mistake. Therefore there was no contract and the buyer got his money back and the seller his cow.
So here’s how I see your situation.
Clearly a fence of some kind needs to be built. Certainly both you and your neighbor will share the cost. The question of whether your previous understanding of the agreement can be used to force the neighbor to participate in the cinder block fence is, well, questionable.
First, it would involve going to court for a $2,000 issue.
Second, it would require you to prove the previous agreement and to show that any reasonable person would have known where the fence was going to go.
Lastly, you’d have to prove that you would suffer some harm if the wooden fence was replaced with another wooden fence instead of the cinder block.
In other words, if you can’t show that one fence is substantially better than the other, or that the old fence never would have been torn down except for the promise of a cinder block one, you haven’t suffered any legal damages.
Frankly, I think you have an uphill battle.
If you can’t negotiate something, and you’re not willing to take your neighbor to court, I think you punt and put a new wooden fence in.
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 SolanoScene@TJones-Law.com.