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Dave Kennett
Dave Kennett, Lawyer
Category: Real Estate Law
Satisfied Customers: 27689
Experience:  25 years experience
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I would like to build a three-foot tall decorative fence

Customer Question

Hi,

I would like to build a three-foot tall decorative fence along the property line between my and my neighbor's house. His planter box extends to within eight inches of the property line. I am sure the location of the planter box is in violation of the building codes. (This planter box has been in place for about 30 years.)
By placing the fence along the line, the trash collectors will not have access to my neighbor’s trash bins. He must then roll them through his garage so the trash collectors can have access to them. He also feels that in case of a fire, he will not be able to escape his home through the side gate. My neighbor claims by erecting the fence, I would be in violation California Penal Code 420.1. My neighbor also claims to be disabled; osteoporosis, thyroid cancer.

What are my options?

Thank you.
Submitted: 8 years ago.
Category: Real Estate Law
Expert:  Dave Kennett replied 8 years ago.

Dear Customer - I have copied the relevant statute below. I can understand why your neighbor is referring to this statute as it would appear that by building a fence you would be hindering his access. Based on my experience, the purpose of this law is to prevent someone from actually blocking another person's entry, not by building on their own property a legal structure.

If the proposed fence is legal and meets the zoning codes then I can't see that it would be violating this statute. Your neighbor can simply remove his planter box and provide his own access. It is not your responsibility to provide access, and in fact it also seems he would be trespassing if he has to come onto your property to remove his trash.

I believe the access is his problem, not yours. He is blocking the access by having the planter boxes. Until you build the fence tell him he is not permitted to come onto your property whatsoever to remove the trash. If he does you can file trespassing charges against him. That is a violation of law!

David Kennett - JD - Attorney at Law

420.1. Anyone who willfully and knowingly prevents, hinders, or
obstructs any person from entering, passing over, or leaving land in
which that person enjoys, either personally or as an agent, guest,
licensee, successor-in-interest, or contractor, a right to enter,
use, cross, or inspect the property pursuant to an easement,
covenant, license, profit, or other interest in the land, is guilty
of an infraction punishable by a fine not to exceed five hundred
dollars ($500), provided that the interest to be exercised has been
duly recorded with the county recorder's office. This section shall
not apply to the following persons: (1) any person engaged in lawful
labor union activities that are permitted to be carried out by state
or federal law; or (2) any person who is engaging in activities
protected by the California Constitution or the United States
Constitution.

Dave Kennett and 2 other Real Estate Law Specialists are ready to help you
Customer: replied 8 years ago.
Dave,

Thank you for your response.
Just one more thing. Is there a possible easement issue as the homeowners association informed me of?

Thank you again
Expert:  Dave Kennett replied 8 years ago.

An easement would certainly change my response. If there is an ingress and egress easement over this part of the property then you cannot block it with a fence. The property is yours but subject to the easement. In that case you could be in violation of the statute.

Dave Kennett

Customer: replied 8 years ago.
Dave,

Thanks again.

There is no recorded easement on this property, I don't know why the homeowners association mentioned this.

Thank you.
Expert:  Dave Kennett replied 8 years ago.

Then I do not believe you have a problem. Just be certain you obtain all the necessary approval from the HOA or local authorities before you install your fence.

Dave Kennett