By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

I recently had a neighbor suggest to me that we jointly fund a new fence along my side of the property that adjoined his. The fence was dilapidated here, but nowhere else. I was open to the idea, but wondered why I should share in the cost if this was the only place my fence was having problems. On all of the other adjoining property lines the fence is fine. Why this one? Maybe because his property was six inches higher than mine on his side of the fence and was pushing into mine? Fences are frustrating.

So why would you want to build one on property you rent? There would appear to be no common law duty in California to erect fencing to prevent entry onto your rented property to prevent injury or property damage. (Check your local laws to see if they are in accord). Some scenarios might compel it -- to keep third parties away from a pool or electrical hazard. But absent some kind of foreseeable danger, there would not be a requirement at law.

Indeed, could it promote new obligations if the landlord builds a fence? Certainly, the landlord would have to maintain that fence, once built. He would not want to build a dangerous one. One with loose boarding. With nails sticking out. Or a ladder leading right to barbed wire. And if the landlord builds a fence on his residential rented property, he would have to maintain it to prevent little tykes who reside therein from busting loose onto adjoining property and getting injured.

Wait a minute. What? He would? Yes. If, say, there was a creek on nearby -- but not owned -- property, and the landlord put the fence up to keep his tenants away from the creek, the act of creating this fence is an act of exercising "control" over the adjoining land, thereby suggesting a duty to prevent injuries on that adjoining property. Cases in California have held a duty in such scenarios.

This is contrasted in those situations where there may be a dangerous condition nearby and the landlord does not erect a fence, such as near a busy road.  There, the landlord does not owe a duty because he did not exercise any control over the busy road by erecting a fence. The plaintiff, in one case which found no duty on the part of the landlord, "was one of many children residing in an unfenced apartment complex that fronted on a busy road. He was injured when he walked off the premises, into the road, and was struck by an automobile."  McDaniel v. Sunset Manor Co., 220 Cal. App. 3d 1, 10 (1990).

So is it better not to erect a fence at all? As we lawyers like to say, it all depends on the facts and circumstances of the particular property and tenants. Since ATPM blog readers are responsible types, there is a strong argument to be made that the erection of a fence to prevent injury on an adjoining property is not only the right thing to do, but one which will prevent injuries (and thereby lawsuits). These loyal readers will not let their fences fall into disrepair, and thus avoid the problem altogether.

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in this blog submissions do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.