Fence laws in Milpitas, California
What the Milpitas municipal code says about fences, one topic at a time, with the section number and a link to the document behind every line. Where Milpitas sets no rule of its own, the California rule is shown in its place and marked as such.
Fence laws in Milpitas, California, question by question
The short version
- Who pays on the line
- Milpitas puts two obligations in its fence handout that most cities leave out.
- How tall
- Milpitas sets no maximum fence height. The chapters that were read are listed below. Cities and counties decide this one.
- Permits
- Every new and replacement fence and retaining wall in Milpitas needs a Planning Department Minor Site permit.
- Pool barriers
- A swimming pool or spa fence in Milpitas needs a building permit regardless of height, and the handout lists it first, ahead of the seven foot rule for ordinary fences. The figure is 7 feet, for height above which an ordinary fence needs a building permit. It reaches swimming pool and spa fences only.
- Spite fences
- A fence over ten feet tall in California is a private nuisance when it was put up or kept there to annoy the neighbor and the extra height serves no purpose. The figure is 10 feet, for spite fence threshold, with malice required.
- Measured from what
- Milpitas measures a fence from the finished grade on either side to the top of the fence surface.
- Corner lots
- California writes no clear view triangle into state law. It reaches the right of way of a state highway, whether or not the whole width is paved only.
- Retaining walls
- A Milpitas retaining wall needs a building permit over four feet, or at any height if it supports a surcharge, and the answer turns on the height from the bottom of the footing, and whether the wall supports a surcharge. The figure is 4 feet, for retaining wall height from the bottom of the footing.
- Materials
- California sets a wire standard for a lawful fence in grazing counties. The figure is 3 strands, for barbed wires in a lawful wire fence. It reaches lawful fences in grazing counties only.
- Livestock
- California calls a fence lawful when it is strong enough to keep livestock from getting in or out. The figure is 4 feet, for height of the top wire on a lawful wire fence.
Who owns the fence between two properties in Milpitas?
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Milpitas answers this in its own law. The words that do it are quoted below.
Milpitas puts two obligations in its fence handout that most cities leave out. The permit holder is responsible for having any excavation marked through 811 and keeping those marks and the tag current until digging, with hand digging and similar precautions where required. And where a homeowners association regulates the property, its approval is needed for exterior work, with the handout stating that obtaining it is the owner’s responsibility rather than the city’s.
Permit holder is responsible for any excavation on site to be 811 marked and maintained (re-marked) and current tag prior to digging
Fence or Retaining Wall (Residential)
Also on fences on the property line in Milpitas
- set in state lawTwo neighbors split the cost of a fence on the line in California. The law starts from the idea that both get the same benefit from it, so both owe the same share of building it, keeping it up and replacing it. A neighbor about to spend that money gives the other one thirty days written notice first. Either neighbor can show the even split is wrong, and a court can then order less than half or nothing at all. Civ. Code 841California · Statute
- set in state lawThe notice has to say six things: that the law starts from an even split, what is wrong with the fence now, what is planned instead, what it is expected to cost, how the cost gets shared, and when the work happens. Civ. Code 841(b)(1)California · Statute
How tall can a fence be in Milpitas?
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Milpitas law has no rule about this. The chapters that were read are listed below. Cities and counties decide it instead.
California sets no limit on how tall a fence at a house can be. Cities and counties write that in their zoning codes and the answer changes a lot from one town to the next. The one height in state law is the ten feet in the spite fence rule, and that only matters when the fence was put up to annoy a neighbor. It is not a building limit.
This one is California law, not Milpitas law. All California findings
Documents read before writing that:
- Civ. Code 841California Legislature
- Civ. Code 841.4California Legislature
Do I need a permit for a fence in Milpitas?
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Milpitas answers this in its own law. The words that do it are quoted below.
Every new and replacement fence and retaining wall in Milpitas needs a Planning Department Minor Site permit. There is no height threshold, no material carve out and no exemption for like for like replacement, so swapping a failed four foot fence for the same fence again goes through planning. The building permit is a separate question with its own thresholds, and the handout opens by saying plainly that installing a fence or retaining wall requires permits, in the plural.
A Planning Department Minor Site permit is required for all new and replacement fences and retaining walls.
Fence or Retaining Wall (Residential)
Also on permits in Milpitas
- set in state lawCalifornia does not write its own building code from scratch. Section 17922 adopts Title 24 of the California Code of Regulations and requires it to ask for much the same things as the International Building Code and the International Residential Code, with state additions and cuts. So the permit rule for a fence starts out as outside code text that California then edits. Health & Saf. Code 17922California · Statute
- set in state lawA California city or county can make the statewide building code stricter, but not quietly. Section 17958.7 makes the city council say in writing why each change is needed because of local weather, ground or land shape. That finding goes to the California Building Standards Commission, and the change does nothing until it is filed. The finding is a public record, which is why a local permit line can sit well below the statewide one. Health & Saf. Code 17958.7California · Statute
Pool fence requirements in Milpitas
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Milpitas answers this in its own law. The words that do it are quoted below.
A swimming pool or spa fence in Milpitas needs a building permit regardless of height, and the handout lists it first, ahead of the seven foot rule for ordinary fences. That ordering is the point: the pool barrier is not an ordinary fence that happens to be tall, it is its own category, and a four foot pool fence needs the same permit that an eight foot boundary fence does.
A Building Department permit is required for all swimming pool/spa fences, other fences over 7 feet in height, and retaining walls over 4 feet in height or which support a surcharge.
Fence or Retaining Wall (Residential)
7 ftheight above which an ordinary fence needs a building permit
Also on pool barriers in Milpitas
- set in state lawA pool fence in California stands at least sixty inches high. No more than two inches may be left between the ground and the bottom of it, and no gap in it may pass a four inch ball. The outside face has no handholds or footholds a child under five could climb. Gates open away from the pool and close and latch by themselves, with the latch set no lower than sixty inches above the ground. Health & Saf. Code 115923California · Statute
Spite fence laws in Milpitas
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California answers this in its own law. The words that do it are quoted below.
A fence over ten feet tall in California is a private nuisance when it was put up or kept there to annoy the neighbor and the extra height serves no purpose. Height on its own is not enough. The case turns on proving why the fence is there. The rule covers anything built like a fence, not only a fence.
This one is California law, not Milpitas law. All California findings
Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance.
10 ftspite fence threshold, with malice required
How fence height is measured in Milpitas
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Milpitas answers this in its own law. The words that do it are quoted below.
Milpitas measures a fence from the finished grade on either side to the top of the fence surface. Naming both sides means the taller of the two readings governs, so on sloping ground the downhill face is what counts. The handout sets out the retaining wall rule immediately afterward and it works differently: that one starts at the bottom of the footing, below the ground, so the buried concrete counts toward the four feet.
The height of fences is measured from the finished grade on either side of the fence to the top of the fence surface.
Fence or Retaining Wall (Residential)
Also on how height is measured in Milpitas
- left to the townCalifornia gives a fence height and never says what it is measured from. Civil Code section 841.4 makes a fence over ten feet a private nuisance when it is kept up to annoy a neighbor. It does not say whether the ten feet starts at bare dirt, at the finished yard, or at the high side of a slope. Government Code section 65850 is why the state stops there: it lets any county or city set the place, height and size of structures. So the number and the surface it starts from are both written into local zoning. Cal. Gov. Code 65850(c)(1)California · Zoning code
Fence rules for corner lots in Milpitas
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California answers this in its own law. The words that do it are quoted below.
California writes no clear view triangle into state law. The Streets and Highways Code counts a fence as an encroachment once it stands in, under or over any part of a state highway right of way. Section 670 then makes putting one there without a written permit from the department a misdemeanor. That covers the public strip, not the corner of a private yard. Government Code section 65850 gives every city and county the power to set the height and place of structures, and that is where a corner triangle gets written in California.
This one is California law, not Milpitas law. All California findings
“Encroachment” includes any tower, pole, pole line, pipe, pipe line, fence, billboard, stand or building, or any structure, object of any kind or character not particularly mentioned in this section, or special event, which is in, under, or over any portion of the highway.
Retaining wall rules in Milpitas
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Milpitas answers this, but the answer changes depending on the height from the bottom of the footing, and whether the wall supports a surcharge.
A Milpitas retaining wall needs a building permit over four feet, or at any height if it supports a surcharge. The four feet are measured from the bottom of the footing, which is the measurement that catches people: the buried part counts, so a wall showing under three feet of face can already be over. The Planning Minor Site permit applies either way, so a low wall that needs no building permit is still a permit.
The height of retaining walls is measured from the bottom of the footing to the top of the wall.
Fence or Retaining Wall (Residential)
The answer turns on the height from the bottom of the footing, and whether the wall supports a surcharge.
- over four feet from the bottom of the footing
- A building permit is required. 4 ft
- supporting a surcharge, at any height
- A building permit is required.
Also on retaining walls in Milpitas
- left to the townCalifornia has no rule of its own in statute for a wall that holds back earth. The rule is in Title 24 of the California Code of Regulations, which section 17922 adopts by reference and requires to match the newest editions of a named list of outside codes, the International Building Code and the International Residential Code among them. The same section leaves setbacks, side yards, rear yards and property line rules entirely to cities and counties. Health & Saf. Code 17922(a)California · Statute
Fence materials allowed in Milpitas
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California answers this in its own law. The words that do it are quoted below.
California sets a wire standard for a lawful fence in grazing counties. A wire fence takes three tight barbed wires on solid posts set no more than a rod apart, with one wire at least four feet up. Any fence as strong and as tall as that one counts too.
This one is California law, not Milpitas law. All California findings
No wire fence is a good and substantial fence within the meaning of this article unless it has three tightly stretched barbed wires securely fastened to posts of reasonable strength, firmly set in the ground not more than one rod apart, one of which wires shall be at least four feet above the surface of the ground.
3 strandsbarbed wires in a lawful wire fence
Livestock and boundary fence law in Milpitas
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California answers this in its own law. The words that do it are quoted below.
California calls a fence lawful when it is strong enough to keep livestock from getting in or out. A wire fence gets real numbers: three tight barbed wires on posts set no more than one rod apart, with one of those wires at least four feet off the ground. Any other fence as tall, as strong and as good at holding animals counts too, and so does a cattle guard wide and deep enough to turn them.
This one is California law, not Milpitas law. All California findings
No wire fence is a good and substantial fence within the meaning of this article unless it has three tightly stretched barbed wires securely fastened to posts of reasonable strength, firmly set in the ground not more than one rod apart, one of which wires shall be at least four feet above the surface of the ground.
4 ftheight of the top wire on a lawful wire fence
Also on agricultural fencing in Milpitas
- depends, see the pageCalifornia answers this one county by county. Section 17123 names Siskiyou, Lassen and Modoc, plus parts of Trinity and Shasta, as land used mainly for grazing. Section 17124 lets the board of supervisors of any county put the same label on the county or part of it. Where the label applies, the land has to be fully fenced before the person on it may take in a stray animal or hold it for payment. Cal. Food & Agric. Code 17122California · Statute
Documents behind this page
10 documents, of which 1 was published by Milpitas itself. Each was read on the date shown.
- California LegislatureCalifornia Civil Code Section 841, Good Neighbor Fence Act of 2013
- City of Milpitas, Office of Building SafetyFence or Retaining Wall (Residential)
- California LegislatureCalifornia Civil Code Section 841.4, spite fences
- California LegislatureCalifornia Health and Safety Code Section 17922, adoption of building standards
- California LegislatureCalifornia Health and Safety Code Section 17958.7, local modification of building standards
- California LegislatureCalifornia Health and Safety Code Section 115923, enclosure requirements
- California LegislatureCalifornia Government Code, Title 7, Division 1, Chapter 4, Article 2, Section 65850
- California LegislatureCalifornia Streets and Highways Code, Division 1, Chapter 3, Section 660
- California LegislatureCalifornia Food and Agricultural Code, Division 9, Part 2, Chapter 3, Article 5
- California LegislatureCalifornia Food and Agricultural Code, Division 9, Part 2, Chapter 3, Article 5
What this page does not cover
A city ordinance is not the only rule that reaches a fence. The zoning district a parcel sits in can change the height allowed on it, and so can an overlay district, a recorded easement, a fire hazard severity zone or a coastal zone. A homeowner association can be stricter than the city and nothing in the municipal code will say so. None of those appear here.
The rules above are the ones Milpitas publishes, plus the California rules that apply where the city sets none. Fence laws in California has the state layer in full.
This is general information drawn from published government documents. It is not legal advice, ordinances are amended, and the date beside each finding is the date the document was read. How findings are made · What the terms mean