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I have a question about the legal basis on sharing the cost of repairing retaining wall between neighbors:I have a house built on a sloping ground, amid a row of similar houses built by developers in 1980's. The slope is pretty flat and the elevation differences between adjacent houses are about 3 ft. Due to the saturation of rains, both the retaining walls in my up-slope and down-slope boundaries are getting loose and start to move, so there exist some soil erosion on both sides.I has been trying to send letters to my up-slope neighbor regarding repairing the retaining wall, offering share the cost, and was completely ignored. Meanwhile, I got nasty letters from the down-slope neighbor who insists I must replace the retaining wall for full-cost, otherwise he would "see you in court".My question is: What is the California law governing the property line and responsibilities of shared facilities for the neighbors? If I would sue the up-slope neighbor, do I have a legal basis to win? If I were sued by the down-slope neighbor, what would be the legal basis for my defense?I live in Contra Costa county, California.
Submitted: 4 months ago.Category: CA Real Estate
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Answered in 17 hours by:
3/23/2018
Lawyer: Josie-Mod,
 replied 4 months ago
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Customer reply replied 4 months ago
I'd like to wait a little more time.
Lawyer: KLAW, Lawyer replied 4 months ago
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Lawyer: KLAW, Lawyer replied 4 months ago
In California the law states that there is a presumption that neighbors equally benefit from a common fence, or wall, and that the cost for building or fixing a common wall or fence should be equally shared. Here is a link to the copy of the law. http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV§ionNum=841.The law requires that a party intending to build or fix a common fence must first send a notice to their neighbor prior to doing any work. It also lays out the circumstances under which the presumption that both parties equally benefit (and therefore should pay equally) may be overcome.So, if a common fence or wall is to be replaced the builder, must send your neighbor a notice of your intention to do so at least 30 days before work starts. The notice must include the following information:You must advise your neighbor that, under California law, “Adjoining landowners are presumed to share an equal benefit from any fence dividing their properties and, unless otherwise agreed to by the parties in a written agreement, shall be presumed to be equally responsible for the reasonable costs of construction, maintenance, or necessary replacement of the fence.”
You also must include a description of the problem with the fence;
Your proposed solution for addressing the problem;
The estimated costs for fixing the problem;
Your proposal for how to split the costs; and
Your proposal for the timeline for getting the problem fixed.If both you and the neighbor, do not both equally benefit from a shared fence, and therefore the costs should not be shared equally.The law provides guidelines for determining where this might be the case. Courts are directed to consider the following in trying to determine if costs should be divided other than equally:If the financial burden to one neighbor is “substantially disproportionate to the benefit conferred” by the fence;
If the cost of the fence would be greater than the difference in the value of the property;
If the financial burden on one neighbor would “impose an undue financial hardship” on that neighbor;
(If this is the case, the neighbor with the financial hardship will need to give “reasonable proof” of their “financial circumstances.”)
The “reasonableness” of the cost particular project, including:
If the costs of the project are “unnecessary or excessive.”
If the costs of the project are “the result of the landowner’s personal aesthetic, architectural, or other preferences.”
And, of course, a catch-all by which the Court may consider other “equitable factors” appropriate for the specifics of any individual case.In your case the retaining walls in my up-slope and down-slope boundaries are getting loose and start to move and under the law you are both equally responsible if shared as described.Remember, none of the above factors are particularly specific, and are simply guidelines for courts to use. The law was made vague and general to allow the courts to decide based upon each case and the specific facts.The Courts are given broad discretion to split the costs of a common wall in essentially any manner that they view as fair. In extreme circumstances, a Court could even order that one party must be responsible for the entirety of the fence project, which is rare.So you do have an action to enforce both upslope and downslope neighbors to pay 1/2 of the costs of repair. However, if they won’t agree upon the cost, you will probably have to file a court action to force the neighbors to pay their share.I hope this clarifies. Please don’t forget to rate the question with stars. We as attorneys are not employees of Just Answer and are not paid unless you rate the question with stars.
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