DO GOOD FENCES MAKE GOOD NEIGHBORS DURING A PANDEMIC?

Most of us have heard the phrase “good fences make good neighbors.” The origin of this phrase is a poem by Robert Frost, “Mending Wall,” in which two neighbors converse while working together to repair a stone wall separating their properties. They undertake this repair every year because the wall falls apart. One of the neighbors asks whether it would be better to just let the wall collapse; the other neighbor responds with the above phrase. The poem leaves it up to the reader to decide what the neighbor means by this statement.

Apparently, the many neighbors who have retained me in the last four and a half months do not enjoy the apparently cooperative relationship of the neighbors in the Frost poem, as they have come to me with a number of disputes involving fences, property lines, and trees. I have been speculating about what has prompted the sudden increase in these types of cases, and one theory is that homeowners, restricted to their homes because of the pandemic, are becoming irritated by property conditions that they have known about but tolerated for years. While these homeowners can’t control the pandemic, they can now attempt to exert control over fences and trees and, by extension, even their neighbors.

Irrespective of what may be giving rise to these disputes, this article will highlight some of the issues involved in how to go about resolving them.

• Whether the dispute involves the property line, fencing, or trees, the starting point is to obtain a survey

Do not assume that the fence represents the property line, even if it has been in place for a long time, or that the existence of that fence establishes a prescriptive easement for the area that is fenced in. Also, do not assume that the survey you obtain will be accepted by your neighbor as accurately reflecting the property line. Surveyors may reach different conclusions regarding the property line based upon, among other factors, the starting point for their surveys.

• Until there is an agreement between the surveyors and between you and your neighbor regarding the property line, there is an issue that will need to be decided by a court

Disputes involving fences, property lines, and tree branches and roots can go to trial if property owners cannot agree on the property line location and their rights and obligations associated with that property line.

• Consider the impact of taking any action – such as tearing down and/or replacing a fence or trimming tree branches or roots – before you and your neighbor reach a consensus regarding the property line or the condition of the tree or before a court has made such determinations

This is especially important if you and your neighbor have been disputing these issues without coming to any resolution and you take this kind of action out of spite or to attempt to assert your position. This sort of action is referred to as “self help”; absent an emergency or other compelling reason, a judge may not look favorably upon a property owner who resorts to self help.

• Evidence that demonstrates spite or a negative state of mind includes emails, text messages, and personal confrontations between the parties

Try communicating with your neighbor regarding your issues and concerns before taking any action. Attempt to have a conversation with your neighbor to begin with, rather than sending any written communication expressing your opinions and conclusions. This is especially important if you have been stewing about the issues, because you may regret the tone and content of any written communication at a later point. Remember, the tone and language you use in any such communication, as well as that of your neighbor’s response, will be scrutinized in court.

If you are able to talk to your neighbor, give them a chance to consider your issues and concerns and a reasonable time in which to respond to them. You should ultimately follow up with a written communication memorializing what was discussed, any response or lack thereof, and any agreement that was reached. If you reached agreement on some subjects but not others, your written communication should memorialize that fact as well. Remember that your oral and written communications with your neighbor will be admissible in evidence. Again, what you say, how you say it, the tone you use, how much time you give your neighbor to respond, and a number of other factors will be scrutinized if the matter goes to court.

• An emergency situation threatening life, health, or safety may justify resorting to self help, but you should exercise caution in such circumstances

Usually, an emergency situation involves the health of trees. At a minimum, you should obtain written reports from a qualified and licensed surveyor and arborist and provide those to your neighbor before you take any action. Try and give your neighbor a reasonable amount of time to respond to the reports and the action you propose to take.

For example, if you believe that a neighbor’s tree represents a hazard to your property, your first step should be to obtain a written report from a qualified and licensed arborist that describes the condition of the tree, the likelihood of the tree or tree limb(s) falling, the life, health, and/or safety issue that exists, and the nature of the action that will be taken. Read the report carefully to be sure that it addresses all these issues instead of just checking to see that it says what you want to hear. Another consideration is whether the arborist is willing to testify in court and state his/her opinions before a judge. Some professionals who express opinions on such subjects expressly state in their written reports that their statements are not to be used for litigation purposes and they will not testify in court.

• Providing your neighbor with a survey and/or an arborist’s report does involve some tactical considerations

First, has your neighbor previously provided you with any surveys or arborists’ reports that address either the property line or the health of the trees? If so, then you will need to obtain a written report to confirm or refute the opinions of your neighbor’s consultants. If you obtain such reports and provide them to your neighbor, you are then likely bound by the conclusions your consultants have reached. In other words, once you give the reports to your neighbor, it will be difficult to argue later on that those consultants were in error and that a subsequent report you obtain is correct. If your neighbor has not provided you with any reports, then you can consider conditioning the delivery of the reports you obtain upon receipt of written reports that your neighbor either has in his/her possession or ultimately obtains. Any agreement on this issue should be expressed and confirmed in writing before you give your neighbor your reports.

Another option would be to split the cost of these reports with your neighbor. The practical effect of doing so is that both of you are likely to be bound by the opinions expressed in those reports as opposed to having the opportunity to obtain your own consultant(s) to independently confirm or rebut the opinions of your neighbor’s consultant(s).

• California law generally authorizes a property owner to cut tree limbs or tree roots that encroach over a property line – as long as you do not kill the tree

Obtaining a survey is the only way to establish that any tree limbs or roots that are going to be cut actually encroach over the property line, and you will need an arborist’s written report specifying what limbs or roots may be cut without killing the tree.

Where tree roots are involved, it may be important to obtain a written report from a qualified and licensed geotechnical engineer, civil engineer, engineering contractor, and/or general contractor.

This report will need to state that the tree roots are in fact causing the harm that you allege (e.g., to concrete flatwork, driveways, patios, fences, etc.), and it should address the cause and effect between the tree roots and the damage.

• Obtaining a written report from a similarly qualified expert may also be important in a dispute involving the condition of a fence

California Civil Code § 841 governs issues between neighbors relating to the repair, replacement, and/or maintenance of fencing between adjoining properties. Please refer to my prior articles on this subject for the details regarding this statute.

Issues regarding the condition of a fence and what has or has not caused damage to the fence often are in dispute. Reports can be obtained from qualified licensed professionals to identify what may be causing the damage, including such factors as surface or subsurface water, tree roots or limbs, dry rot and/or decay in the wood fencing material, the quality of construction, and so on. The guidelines regarding surveyors’ or arborists’ reports apply to these reports as well.

• Obtaining more than one bid or proposal for any anticipated work is also a good practice

Compare the bids/proposals and see if their scope of work, materials, and other factors are the same. Bids/proposals should be obtained from licensed and qualified professionals. Depending upon the size and dimensions of a tree, a licensed contractor may be required. Determine whether permits may be required. It is also necessary to determine whether the tree is a heritage tree or is otherwise protected by any ordinance(s). All of these issues may not be addressed in the bids/proposals or may be exclusions from the scope of services being provided.

• Should you consult with a qualified California real estate attorney regarding these types of issues and disputes?

You probably don’t need to consult an attorney if you and your neighbor can agree on what the issues are and how to address them, provided that all of that is documented in writing and agreed to by the parties before any action is taken. It may, however, be important to retain an attorney to memorialize any such agreement, especially if it involves a property line.

On the other hand, if you and your neighbor cannot come to an agreement, consulting an attorney before taking any action may be appropriate. The same is true if you have any questions or doubts about how to proceed. Another consideration is that, generally speaking, communications from an attorney on behalf of a client are not admissible in evidence; therefore, if you are concerned about how to express yourself in writing regarding your issues and concerns, consulting with or retaining an attorney may be advisable.

• Don’t assume that you will be able to recover any attorneys’ fees you incur

Attorneys’ fees incurred in property line, fence, and/or tree disputes are not recoverable in California. This is true even if you are the prevailing party. Therefore, there are practical issues involved in addressing disputes of this nature. Don’t lose sight of the actual cost of solving the problem (removing a tree limb, repairing or replacing a fence, etc.) in relationship to what it might cost to litigate the issue in order to prove your point. One approach might be to communicate with your neighbor on a progressive basis and try and resolve the matter and, if that is unsuccessful, consult with a qualified California real estate attorney who can work on settling the dispute.

The foregoing are some of the issues that come up in disputes involving property lines, fences, and/or trees. There are a number of other matters that can be discussed with a qualified California real estate attorney on these subjects, including the interpretation of Civil Code § 841, the existence of any historical surveys, potential insurance coverage, whether the property issues have escalated to the point that the police have been called in and whether they have made any recordings or prepared written statements concerning the parties’ dispute, whether any local ordinances impact these issues, and so on.