When winter weather hits California, wind and rain can damage property owners' fences. This may happen when strong winds, acting on fence posts that are sitting in rain-saturated soils, blow the fence over.
In situations like this, damage is usually substantial enough that property owners should consider whether another source exists that can help pay for the cost of repairs. These sources include the person, developer, or builder who sold you the home seller (if you recently purchased), your home warranty provider, and your homeowners' insurance policy. If you share the fence with a neighbor, your neighbor might also be liable for a portion of the repair costs.
Read on to learn more about your options for defraying the cost of repairs for fence damage caused by wind and rain in California. (For more information on neighbor-to-neighbor issues in general, and fences, in particular, check out Nolo's Neighbor Disputes section and Fences and Neighbors FAQ.)
Recovery From the Seller for Recent Home Purchases: New Construction Only
If you recently purchased your home, and the home is new construction (not a previously owned home), the seller might be liable for your fence repair costs in certain situations.
For starters, California Civil Code Section 896 lays out the standards for fences built as part of new construction homes. Those standards require that non-treated fence posts not be installed in contact with soil in a way that would cause unreasonable decay. They also require that untreated steel fences be installed so as to prevent unreasonable corrosion. If your fence does not comply with these standards, you may be able to recover the fence repair costs from the seller.
Those standards also require that landscaping systems must be installed so as to survive for at least one year. So, if your fence is considered part of your landscape system, you may be able to recover from the seller for repair costs if the damage occurred within one year after the landscaping work was done.
Recovery From the Seller for Recent Home Purchases: Nondisclosure of Fence Defect
If you recently bought your home, you might be able to get reimbursed for the damage to your fence if, during the sale, the seller did not disclose the existence of material defects to the fence. Under this theory, which applies to formerly owned homes, you'd have to show that:
- the seller knew that the fence was dilapidated and at risk of falling
- the seller did not disclose that fact, and
- you were unaware of that risk even after property inspections, or the risk was not otherwise obvious (for example, if the fence was leaning precipitously, it's unlikely a court would find that the defect was not obvious).
The tricky part is providing evidence that the seller knew that the fence was dilapidated and at risk of falling. You might have evidence if, for example, a contractor previously recommended that the seller repair the entire fence because of rotted posts, but the seller repaired only certain sections of the fence. A statement by the contractor could serve as evidence for your nondisclosure claim -- that is, that the seller had knowledge of the defect, but concealed the contractor's recommendation that the entire fence be replaced.
Recovery From a Home Warranty
Many home sellers provide a short-term (typically, one year) home warranty (essentially, a service contract) to the buyer as part of the purchase price. Often such warranties provide repair service for appliances, plumbing systems, electrical systems, heating, air conditioning, and ventilation systems. They may also include fence repairs.
So, if you recently bought your home, check your purchase agreement to see whether it includes a home warranty. If you don't see one mentioned in the purchase agreement, ask your real estate agent whether such a policy was purchased. In any case, examine the policy to see if it includes fence repairs. (And watch out for exclusions!)
Reimbursement From Homeowners' Insurance
If the damage to your fence was caused solely by the wind, and not because of rotted posts or other defects in the fence, you might get compensation for repair costs from your homeowners' insurance policy. Check your policy and talk with your insurance broker to determine whether your policy covers wind damage to fences.
If it does, and your share of the cost for a new fence or to repair an existing fence is more than the deductible, you might consider making a claim on your policy. Learn more in Homeowners' Insurance: Got Enough Coverage?
Shared Fences: Sharing the Repair Cost With a Neighbor
What if the damaged fence is one you share with a neighbor? In California, if the fence encloses the yards of both you and your neighbor, then each of you must share maintenance and repair costs for the common fence. If your neighbor refuses to pay his or her share, you can sue for a proportionate share of the maintenance or repair costs. Depending on the amount you seek to recover, you could sue in small claims court. (In California, the small claims court limit is $7,500 for lawsuits brought by an individual.)
However, if the fence does not enclose your neighbor's yard (that is, your neighbor does not have a rear or other side yard fence), then a court might find that the fence doesn't benefit the neighbor, and may not require the neighbor to share in the cost of fence repairs or replacement. If you do repair or rebuild the common fence, and the neighbor later encloses his or her yard, you could then seek reimbursement for the cost of the previous fence repairs.
by: Steven Mehlman of the Mehlman Law Group in Walnut Creek, California. Mr. Mehlman's legal practice includes real estate law, including property damage, construction defects, seller nondisclosure, and neighbor disputes.