Real Estate & Property Law

Who Has To Fix The Fence?

Here is a question I recently received on maintenance of fences in a Caliornia HOA.

"I own a SFR and I live next to an easement/common area owned by our HOA. During the winter, a portion of the fence blew down due to heavy winds. I believe the cost of repairing the fence should be shared by us and the HOA.

We live in California and according to California Civil Code 841: adjacent landowners equally contribute to maintain walls and fences between them, unless one of the two landowners chooses to let the remaining sides of his property remain unfenced.

However, the HOA sent us back a letter stating that according to HOA's CCRs, the HOA is not responsible, but I am responsible for the fence and its maintenance and repairs.

My question is doesn't California Civil Code supersede any HOA by-laws?"

MY ANSWER: Sometimes the law controls and sometimes governing documents control. If a law says "Notwithstanding the declaration [or governing documents] ... blah, blah, blah, the word "notwithstanding" bacially it means it doesn't matter what the governing documents say - the law controls. If the law says "Unless the declaration provides otherwise," ... the words "unless the declaration provides otherwise," mean that the declaration would take precedence.

In this case, the law (Civil Code Section 841) says neither. In fact, it is not even in the Davis-Stirling Act. It is in a section of California law that simply codifies some "common law" principles.

In this case, California law relating to property restrictions and equitable servitudes is more specific to the situation and it prevails. (It's a bunch of legal jargon but what it means is that since there is a more specific law, and an agreement that binds properties and commits owners to property restrictions, it controls - it is more specific to the issue.)

I am not providing a legal opinion here because I have not been asked to review the documents or provide one. While it is fair to say that the governing documents will control with regard to fence maintenance, I did not review them to figure out how the allocation on party fences (those shared by two property owners) is made. HOA CC&Rs often have regs on party fences, and then the question has to be answered as to whether the fences between the common area and a separate interest lot are treated as party fences would be (shared expense),as common area maintenance is (HOA expense), or as the sole obligation of the owner of the Lot.

Full post as published by California Condo & HOA Law on May 20, 2008 (boomark / email).