HomeMy WebLinkAboutAV 86-11; Harold & Paula Vickery Fence; Administrative Variance (AV) (4)LAW OFFICES
FERMAN W. SIMS
A PROFESSIONAL CORPORATION
4405 MANCHESTER AVENUE. SUITE 102
REPLY TO.
ENCINITAS. CALIFORNIA 02024
?OST OFFICE BOX SO9
942-6117
110 WEST C STREET. SUITE 2202
SAN DIEGO. CALIFORNIA S2101
233-1a1a
July 23, 1986
Mrs. Evelyn S. Ditlevsen
7731 Calina Way Carlsbad, CA 92008
Re: Boundary Fence
Dear Mrs. Ditlevsen:
I appreciate your speaking with me on on Friday, July 18th
regarding your letter dated June 27, 1986 to Mr. & Mrs. Howard
Vickery. I have reviewed your letter and Section 1013 of the
California Civil Code which section does not appear applicable to this matter.
Specifically, Section 1013 relates to situations where
an agreement did not exist. In this case, information provided
to me indicates that an oral agreement did exist to install
the fence, along with your representation that you would pay for one-half of the materials, which is corroborated by a third party.
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Additionally, it appears that the wooden fence was installed
in the same location where you had previously maintained a light weight wire boundary fence and that you did not change your
mind as to payment of one-half of the materials until after
all posts were installed and a portion of the fencing was in
place.
My research of the law indicates that Sections 871.1, 871.5
and 841 of the California Civil Code are controlling regarding
this dispute. Basically, these sections involve the rights
of a good faith improver of property owned by another and duties
of conterminous owner to equally maintain the boundaries between them.
The damages you allude to in your letter were never brought
to the attention of Mr. & Mrs. Vickery at the time you mentioned the mortar on your decorative rock. As you know, Mr. & Mrs.
Vickery retained workmen to clean up this area and replaced
said area which contained loose mortar. The light weight chicken
wire type fence was replaced with a wooden fence per mutual
agreement.
Mrs. Evelyn S. Ditlevsen
Page Two
July 23, 1986
This is a type of matter that will be to the benefit of
all parties to resolve itself in the early stages so I would
suggest that you discuss this matter with your attorney and
provide him with a copy of this letter. Basically, our legal
position is as follows:
1. The fence was constructed in its present position
based upon an oral agreement of neighbors.
2. The fence is not to be taken down or in any way
altered by you or your agents.
3. YOU are legally obligated to pay for one-half
of the materials of this boundary fence but Mr. & Mrs. Vickery are willing to waive this obligation
owing to them provided this matter is resolved at
this time without any further demands being made upon
them and without further costs to defend against these demands.
Lastly, it will be to the advantage of all parties to
cooperate in resolving this dispute at this time. I urge you
to discuss this matter with an attorney and feel confident that
you will also reach this decision.
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Thank you in advance for your anticipated cooperation.
It is unfortunate that this problem has arisen but it is not
too late for all parties to exhibit restraint and consideration
for their neighbors' peace of mind and privacy. Therefore,
I trust that this matter will come to a speedy and amicable
resolution. I remain,
Very truly yours,
FERMAN W. SIMS
cc: Mr. & Mrs. H3rold Vickery
FWS: sw
5.040