Q: My husband and his brother co-own a property and the new property owner next door (an older woman) is requesting we replace the fence. We know it’s old and needs replacing and we were willing to do just as we have done with other neighbors. The neighbor lady’s son is a real estate agent, owns rentals and is a property manager. We have exchanged emails and met at our property so that they could discuss what we need to take care of on our side; e.g. cut berry vines and grape vines, etc.
The son has insisted upon drawing up a contract, which we were fine with, but I wasn’t going to sign one that I hadn’t read nor agreed with. The problem is we have been too busy with work and didn’t get to it as soon as they wanted and he got nasty and sent angry (communication) and stated if we didn’t sign by the next day, they would replace the fence and take us to small claims court for half. Well, I didn’t appreciate their handling of the whole deal and did not sign and send back the contract.
Today I received a certified letter (and) along with it is the Civil Code section, which I had already looked up since he referenced it when he threatened to sue in small claims court. The letter gives the date that the fence will be built along with demands regarding the removal of the vines. Apparently, the “good” has gone out of good neighbor. In our experience, one neighbor gets the bids, chooses one and then the other says go ahead and then pays for half when the fence is done.
My question: Should I respond to him by certified letter and if so I am hesitant about what to put in writing?
A: Yes, I too think the term “good neighbor fence” is a sorely optimistic expression.
First, the real estate agent/son can certainly help his mother with fixing the fence, but he’s overstepping his authority, both as a licensed real estate agent and as her son, in threatening to sue you. Unless he owns the property or is an attorney, your negotiations are with his mother. She’s the only one who can bring suit against you.
Technically, a “good neighbor” fence is a fence between two properties that both property owners are responsible for. The Civil Code provides that in California there is a legal presumption that a fence between two properties is for the benefit of both properties and is therefore the responsibility of both landowners.
But there are a number of exceptions to this rule that are too involved to go into here. Plus, it sounds like the mutual responsibility issue really isn’t in dispute.
So let me assume you agree the fence is partially your responsibility. First, I’m not sure about the whole “contract” idea. What contract? What’s its purpose? If the berry bushes are on your side of the fence, and have to be cut to replace the fence, then it’s already your responsibility. A contract on the subject doesn’t change that.
As a general rule, at least it’s my general rule, entering into a needless contract is stupid. Why? Because contracts are always subject to interpretation. Like anything else, when you make an agreement in writing it’s possible for two people to read the document and draw different conclusions. Why set yourself up for that? And it’s even more true when the contract was written by a non-attorney.
Ever wonder why even simple attorney-drafted contracts are so long? OK, maybe it’s because we bill by the word. But it’s also because lawyers learn from bitter experience how easily things can be misinterpreted years, and sometimes generations, down the road. So using as much detail as possible helps to narrow the danger of a later misunderstanding.
I see no need to enter into a contract regarding the fence. However, the son sounds like he did, at least on behalf of his mother, what the Civil Code requires.
Even if you do nothing, the code only requires you to reimburse the “reasonable” cost of replacing your half of the fence. If he hires his uncle to build the fence at a premium cost, you can always argue the cost was too high.
However, what you should do is simply send a letter back suggesting that each of you get a bid and everyone should just accept the lower bid. No certified letter necessary. But make sure you copy the mother directly.
At the end of the proverbial day, if the fence really does need to be replaced and one of the two of you pays to replace it, the court will decide how much money is owed to the paying party. That amount should be the reasonable price of the fence’s replacement.
In other words, the ultimate cost to you is going to be about the same no matter how this gets done, but playing nice together usually helps to keep good neighbors good.
Tim Jones is a real estate attorney in Fairfield. If you have any real estate questions you would like to have answered in this column you can contact him at [email protected]