The “Spite Fence” Rule Every Homeowner Should Know – Whether You’re Building a Fence or Living Next to One

We have all heard the old saying “good fences make good neighbors,” but lawyers still get asked a lot of questions about the legality of fencing. A “good” fence is one that both neighbors agree is beneficial, but problems arise when opinions differ.

When one neighbor’s fence ideas differ from the preferences of the person living next door, the question a lawyer hears is usually: Is it legal? Unfortunately, this is usually hashed out after the fact, when the controversial fence is already standing. If you are considering screening your yard with a privacy fence, it’s important to know the laws first, including height and setback requirements, as well as the “spite fence” concept that can transform a fence into a private nuisance.

I tackle this question (and others in my Gardening Lawyer series) by drawing on my experience as both a gardener and former attorney.

The Problem with Fences

The first fences were built some 7,000 years ago as humans abandoned the nomadic life and settled into fixed farming communities. Fences were useful for keeping domesticated livestock in and wild animals out. Today, fences in urban areas are not often related to livestock or crops.

Fencing has become a way of defining property ownership and creating privacy and security. And the areas fenced today are often postage-stamp-size city lots rather than untold acres of ranchland. That means that fencing can and does have a direct impact on neighbors. A tall, solid fence can cut off a view and reduce sunshine to an adjoining property, as well as make both parcels look smaller.

It’s perhaps no surprise that property boundaries are a common source of disputes: in a FindLaw survey, 17 percent of Americans who reported a neighbor dispute said it involved a property boundary.

What Does the Law Allow?

One of the reasons that fence issues cause disputes is that there are many levels of regulation – including state laws, city codes, and even HOA or subdivision rules. And laws vary from state to state and even from one urban area to another. That makes it difficult to figure out what law applies.

But it’s critical to know the laws that apply to the installation of a new fence and whether a permit is required. Ask at the local building department to get started. Or contact a local attorney.

Is It a Spite Fence?

Have you heard of a spite fence? It’s not a term that comes up frequently in conversation, but it is still a concept in the law. A spite fence is a fence built by one homeowner – not for any beneficial use, but simply to annoy or harass a neighbor. The fence might be excessively tall or unsightly, but the element that makes it a spite fence is the malicious intent behind it.

How does a spite fence anger a neighbor?

• It might be so tall that it reduces the light to the neighboring property. (Some states have laws that define a spite fence as a structure exceeding a certain height – 10 feet in California, for example – that lacks a proper purpose.)
• The side of the fence facing the neighbor might be so ugly that it ruins the peace and beauty of the neighbor’s backyard.
• The fence might be placed in a way that blocks the neighbor’s view.
• The fence might be tall enough to cut off light and air from the neighbor’s yard.

Courts will consider the effect the fence has on the neighbor’s property and will also look at whether it provides a benefit to the person who built it. Another factor courts consider is the timing of the fence. If the neighbors had a dispute about something, and the next day the fence was constructed, it could give the impression that the fence was built for malicious purposes.

If a fence appears to be constructed to annoy a neighbor, that neighbor can take legal action. They can ask the court to declare the fence a private nuisance, order it to be removed or shortened, and award damages for loss of enjoyment of the property. This is not a pleasant event for anyone, so those constructing fences should take every step possible to avoid a spite-fence lawsuit.

Tips for Avoiding a Fence Problem

• Think long and hard before making a decision to build a fence. Keep a notebook of what you’re thinking about, whether it is a safety issue, a way to keep your dogs from wandering, or a question of privacy around your swimming pool. Consider alternatives.
• Find out what rules and regulations your state, city, and subdivision have in place that apply to fence construction.
• Talk to a contractor to get their thoughts on the height required for your purposes (and allowed in your region) as well as the different types of fencing that might meet your needs. It’s also worth measuring the proposed fence line carefully; a 100-foot-long measuring tape, like this Amazon Basics tape, will make it easier to calculate the length of fencing required and map out where it will sit.
• Talk to your neighbors and share the reasons you want to put in a fence. Don’t ask for their permission, but ask for their understanding. Tell them your thoughts about how high you need the fence to be and the material you plan to use, and get their thoughts. Share the sketch of what it will look like.
• Listen to any concerns they express and determine – with your contractor – whether you can accommodate any of them while still accomplishing your purpose.
• Get a permit, if required.
• Give the neighbor a heads-up a few days before construction begins.

Remember, good fences might not make good neighbors, but good neighbors should only make good fences. Do your best to accommodate your neighbor and include them in the discussions, and you’ll reduce the risk of ending up in a “spite fence” dispute.