Home & Garden

About the House: Good Neighbors Make Fences

By Matt Cantor
Thursday June 26, 2008 - 09:54:00 AM

Having browsed the local flea market for years, I have consistently observed that many of the dealers-in-miscellanea seem resolutely unable to confine themselves to the stalls they have been issued.  

There are always a few—or more—who attempt to push over the edges, to set their wares up to the left and right of the clearly marked lines of their own assigned space. On any given flea-market weekend, I can expect to hear numerous requests to move items off of someone else’s stated turf—and I have heard more than a few full-blown disputes. I find it interesting how hard it is for people to be happy with their lot (as it were) and how deep the sense of injury amongst those who have been invaded by an inch or two. The capacity for umbrage is great in the human animal.  

At the flea market, conflicts usually were resolved within minutes. But in our courts, boundary disputes fill the dockets every year: ask any judge. So many of these complaints seem to be of a kind that might easily be resolved with a simple discussion, but it’s not in the genes. Boundary issues seem to bring out the very worst in all of us. I include myself, of course. I remained so angry at my rear neighbor that we didn’t speak for years. At one point—because we simply could not sit at the same table and speak—I needed my friend Ed, a local attorney, to resolve a relatively straightforward dispute with him.  

I recently discovered that the fellow had passed away over a year ago—and I realized that I had held anger, fear and resentment toward him for all this time in which he had not even been on the planet. How terribly and awfully ironic, eh? Again, I’m not alone. It seems to be a part of who we are and how we operate in the world. Ed shared with me that he, with all his legal knowledge (he’s also a genuinely loving soul and a dear friend) had been through a similar trial (pun intended) for several years. Many of you reading this may recognize yourselves in this scenario.  

How many of our wars are based on this reptilian, mid-brain thinking, our ancient selves alive and stalking in the world of pagers and ICBMs? It’s funny and sad—and it’s not unusual. 

For this reason, I often counsel my clients—those on the bridge to home ownership—to approach boundary issues with little expectation and with as much generosity as they can muster.  

People often ask me where the boundaries for the property are located and I always confess that I cannot know and that no one except a surveyor can say for any certainty where those elusive lines are hiding. It also gets worse in some parts of Berkeley where the damned things keep moving all the time as the earth does the slow amble to the bay. I often refer to my house in the hills as a mobile-home. 

That said, there are some clues that can be used and a viewing of fences is generally the best source of data. Fences are not wholly reliable but may indicate where the properly line has come to exist over time. Ed calls this condition a prescriptive easement as opposed to actual ownership (when the fence is not located on the property line.)  

By adverse possession, a person can come to own some of your land over time but this is actually very difficult and requires a number of conditions that are very hard to meet. This often includes having paid the taxes on that piece of land for some course of years. Nonetheless, the point is that just because there’s a fence doesn’t mean that it’s in the right place or representative of a true legal boundary. 

The same illusion can apply to a small building, a garage or a home addition. They’re not always located on the proper side of the boundary and are sometimes located inside the setback where they oughtn’t be. A setback is the locally proscribed spacing between your house and the property line and varies with certain kinds of construction in addition to the general rules that apply to your property. By the way, just because your neighbor has one set of setbacks, doesn’t mean that the same ones apply to you. This is also true for allowable building heights. Just because your neighbor has a two-story building doesn’t mean that you have the right to add a story onto yours. Seems unfair—but hey, talk to City Hall. 

There are exceptions to the usual setbacks for old or “grandfathered-in” construction—which means you DON’T want to tear down that old garage in the corner of the property before some serious thinking, since you may not be able to rebuild there once it’s down. Decks of varying heights as well as equipment (like water heaters) also have rules regarding setbacks and it’s worth a trip to the zoning department to check and find out exactly where you can and cannot build. 

So, when you’re first looking at a property, it’s worth looking at the “sense” or logic of the fences and gates. Do they look as though they belong where they are? One example of fences not making much sense is when they’re way over to one side and very close to one building and far from another. This may be a tip-off that the fence isn’t where the boundary requires it to be placed.  

Another hint of questionable boundaries is that one fence isn’t in line with the one on the next lot. If the fence seems to “jog” at one point, it might be worth looking at a copy of the assessor’s parcel map for your block to see if the boundaries look the same. Ultimately a surveyor may be needed to unravel any real confusion.  

There’s a larger point to be made here. It’s good to be aware of the fact that your fences may not be where they belong, that a tree may be overhanging your property or that a sewer line may cross over your property, but it’s also important to have some perspective. Given our human territoriality, it is very easy indeed to begin to see these things as gigantic issues that are endangering your life and limb. In fact, they may not have no great an impact on your daily life.  

If a fence deprives you of a one-foot strip of your side yard, take a serious look at the thing before you call your lawyer. Does it prevent you from walking past that side of the house? Is it keeping the meter reader from doing her job? Perhaps it’s just keeping you from having to mow as much lawn. Sometimes the glass is half full. Occasionally it’s cracked. 

Consider that you might living next to that neighbor for many years to come. Which is more important in the long run, a few feet of crabgrass or the icy glances you will share as you weed the front yard for the next decade? Now, I’m not model citizen and I beg you to do as I say and not as I do, but this is really a no-brainer. Your daily happiness will have far more to do with your neighborliness than the exact accounting of your land portion. 

Trees continue to grow as time passes despite anyone’s intentions, so when the branches of your neighbor’s oak are keeping you up at night by grazing the window or eaves, take action, not acrimony. First talk to the neighbor and then trim the tree. You have a right to trim the branches on your side of the property (I won’t say fence and you know why, right?) and by all means should if they’re close to your house (for fire safety if for no other reason).  

Nonetheless, it’s the high road to talk to the neighbor first and to be sure to have a learned person do the trimming so that the tree won’t get sick and die. You could, potentially, be held culpable for that too (it just never seems to stop, does it?) If you’ve taken a friendly approach, it’s far more likely that the neighbor will see you as their friend when things go wrong. (Do things ever go wrong? Do they ever!) 

My neighbor, may he rest in peace, and I had a dispute over a sewer line for many years, a dispute that Freud would have a field day with. The sewer was badly damaged, had never been fixed properly, and on more than one occasion had leaked. This was just horrid and when dealing with this fellow, I felt as though I were a small child who had just had an accident in my pants.  

The process of repairing the dreadful thing went poorly for a range of reasons: our communication was lousy; we didn’t approach it as a team with shared goals. I didn’t hire the best people to go onto his property as I should have but attempted the repair myself (contractors always think they should fix everything themselves, you know) and in the process I bungled into a range of plants and trees that my neighbor liked better than me, my wife and our children put together. To add to the irony, I didn’t know at the time that I had a written easement and had a right to perform repairs. 

We both lost perspective and in the end needed attorneys to settle the matter for us. Luckily, both of our attorneys had the good sense and ethicality to keep us out of court—and to find a sensible way to make us both miserable. Our ensuing hatred of the law and lawyers should rightly have been our hatred of our own stingy and uncompromising selves. 

So I advise my house-hunting friends: before you buy, take a good look at the location of fences and trees. Find out where the sewer runs and investigate any easements that may run across your property. If you have a shared driveway, find out what protocols apply and spend some time talking to the person you’ll be sharing it with. In all cases, try to meet some neighbors before you buy and ask them to tell you of any concerns or past problems that they have experienced. 

The theory of enlightened self-interest seems to me to apply very well in these circumstances, not to mention the golden rule. While it can be incredibly difficult to see beyond our own small selfish concerns when it comes to neighboring issues, the stakes are really quite high: Being your daily happiness and your sanity. And this is equally true when you’re the new kid on the block or an old-time resident. Good luck and good neighboring—and may you turn out to be smarter than I was (which isn’t actually all that hard).