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 What Makes a Fence a Spite Fence?

If a residential fence or structure is built that serves no beneficial purpose for its owner but annoys or injures a neighbor, it is considered a “spite fence”. If it shuts out light, air, or a view for a neighboring property owner, this would support the claim that it was built for spite or annoyance only.

What Options Are There if a Neighbor Builds a Spite Fence?

If a person’s neighbor builds or maintains a fence or similar structure with the primary purpose of annoying that person, there may be state statutes which entitle the person to sue the landowner who built the structure for damages.

In some states, a person can ask a court to issue an injunction to stop the construction of the fence, if the person can get to court before it is completed. Or, the person can request that the court issue an order compelling the landowner to take the fence or structure down, if they do not get to court in time to prevent its construction altogether.

Other options may be to sue the neighbor for damages for nuisance. Or, city or county zoning ordinances or codes may be the source of a solution. If the properties are in a development governed by a homeowners association with covenants and by-laws, then the association governing body may offer an avenue for seeking relief.

Why Does the Government Enact Spite Fence Statutes?

Some states have enacted so-called “spite fence” statutes, because it is generally believed that the use of one’s own property for the sole purpose of maliciously injuring another is not a compelling right of ownership.

In addition, in many residential areas of the U.S., there are state or local laws that set standards for residential fences. They may limit the height to which fences can be built. So, commonly, constructed fences can be six feet tall in the backyard and four feet in the front yard. There may be limitations on the kind of materials and colors that can be used. A fence constructed above the height allowed by law or having a certain appearance may be illegal under local fence height-and-appearance regulations

Does a Spite Fence Have to Be Built with Malicious Intent?

A neighbor cannot successfully sue a builder of a fence or structure just because they find the fence annoying or unattractive. It would have to violate state or local laws regarding allowable heights and appearance.

To be a spite fence, the fence or structure must have been made with the primary purpose of annoying the neighbor, and all other purposes served by the fence must be incidental. However, if the fence or structure provides some benefit or serves some useful purpose for its owner, courts will probably not award damages or order a takedown of the fence or structure.

Exactly what must be proven and what type of relief is available depends on the law of the state in which the fence is built. In Washington state, for example, Washington statutes allow courts to enjoin the construction of any structure built maliciously and intended to spite, injure, or annoy an adjoining landowner.

In Illinois, there is no specific “spite fence” statute. Cases may be addressed under the state’s nuisance law. Under Illinois’s nuisance law, the courts apply a balancing test, which weighs the negative effect on the neighboring property owner’s use and enjoyment of their property against the value of the fence or other structure to the fence owner.

Florida law also makes it illegal for a person or their neighbor to build a spite fence or a fence that serves no legitimate purpose other than to interfere with a neighbor’s property rights. Nuisance fences also fall under this category, especially if the fence interferes with or hinders the use of a roadway or public land. In the latter case, the fence might constitute a public nuisance.

In Florida, fences in must comply with state statutes which include the following requirements:

  • The fence must be substantially constructed with logs, rails, post and railings, steel, iron, and the like;
  • It must be no less than 5-feet tall;
  • To the height of 2-feet above the ground, fences cannot contain gaps in the construction material that exceed 4 inches;
  • To be legal, fences made of barbed or other soft wire must be at least 3 feet tall, have at least 3 strands, with supports that are no more than 20-feet apart;
  • All gates in fences must be constructed to meet the requirement of a legal fence and any openings must be equipped with a cattle guard that is at least 6 feet wide.

Of course, depending on the city and county in which the fence is located, there are likely to be other codes and requirements that dictate the design and construction of any fence that a Florida property owner might want to build.

In other states and locales, fences may also be addressed by local ordinances, zoning laws or homeowner’s association covenants. These sources of rules regarding fencing should always be consulted before a homeowner constructs a fence.

In Connecticut there are specific “spite fence” statutes, and they prohibit the “malicious erection” of any kind of structure that is intended to annoy or injure adjacent owners, including fences. A person who has been annoyed or injured by their neighbor’s fence does not have to show that their neighbor harbors actual ill-will towards them to prove malice in the erection of a structure. Rather, courts should balance objective factors regarding the benefits and detriments resulting for each property owner.

The Connecticut Supreme Court has found that planting trees and shrubs can also be considered the erection of a structure that can be malicious and intended to annoy or injure adjacent owners. So, Connecticut’s “spite fence” statute might prohibit the planting of a hedge or row of trees if it is objectively mostly detrimental to a neighboring property and not sufficiently beneficial to the owner who planted it.

What Do I Need to Prove If I Sue My Neighbor?

If a person wants to sue their neighbor for erecting a spite fence, their complaint must allege that the structure is entirely useless, without value to the owner’s property, and was built with the sole purpose of annoying the person.

To have the fence removed the person would have to show that the structure is detrimental in certain objective ways such as the following:

  • The fence blocks a person’s access to light, air, or a view on their property;
  • It reduces the value of the person’s property;
  • The fence serves no functional purpose for its owner;
  • The fence is different in style and material from other fences in the area, so it does not cohere with the neighborhood’s appearance;
  • The fence provides little or no benefit to its owner.

In most states, a person would want to file a lawsuit based on a theory that the fence constitutes a private nuisance. To succeed with a lawsuit for nuisance, a person would want to present evidence to show the following elements:

  • The person filing the lawsuit owns, rents, or leases a parcel of real property;
  • The person against whom the lawsuit is filed owns adjacent property and has created an environment preventing the person from freely using and enjoying their own property by building a fence;
  • The person did not consent to the neighbor’s conduct;
  • The neighbor’s conduct would be annoying or injurious to any reasonable person;
  • The neighbor’s conduct harmed the person in some manner.

Again, a property owner who wants a court to compel their neighbor to remove a fence should expect to produce evidence that shows how the fence serves no beneficial purpose for their neighbor but injures their own interest in the enjoyment of their property.

Do I Need a Lawyer?

If your neighbor has erected a fence that is annoying to you or negatively impacts your property, a property lawyer can advise you about the spite fence laws in your state and locality and the remedies available to you. If you have a neighbor who is accusing you of building a fence out of malice against them, an experienced property attorney can assist you in protecting your rights.

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