A spite fence or structure is a structure erected and maintained by an adjoining landowner for no apparent benefit, but for the sole purpose of annoying the neighbor by shutting out his/ her light, air, and view.[i] Law does not grant a landowner the right to use one’s own property for the sole purpose of maliciously injuring another. The fence or structure so constructed with a malicious intent is perceived as a nuisance or trespass and the injured landowner will be entitled to sue for damages. In an action to secure the demolition of a spite fence as a nuisance, the injured owner should allege that the structure complained of is entirely useless to the respondent and also that it was maliciously erected solely for the purpose of injuring the complainant in the use and enjoyment of his/ her property.[ii] The aggrieved party can recover only compensatory damages in a civil action. The adjoining landowner may recover damages for the injuries suffered, including the diminution in the value of the use of his/ her property and the annoyance caused by the erection and maintenance of the prohibited structure. In a proceeding for the abatement of a spite fence, the evidence should be clear and convincing before the plaintiff will be granted relief. In a proceeding for abatement of a spite fence, a plaintiff has to prove the following factors to restrain the defendant: (1) the defendant intends to and will, unless restrained, maliciously build a fence; (2) the fence is of no benefit to the defendant; (3) defendant build the fence solely for the purpose of annoying and injuring the plaintiff by shutting out the light, air, and view from defendant’s building. Injunctive relief is also an appropriate remedy in a nuisance action brought by a homeowner against a neighbor. A permanent injunction may be granted even where the defendant had abated or removed spite obstructions voluntarily after the action was brought. However, no injunction will be granted if the defendant acted in good faith in removing the controversial structure.
[i] Racich v. Mastrovich, 65 S.D. 321 (S.D. 1937)
[ii] Norton v. Randolph, 176 Ala. 381 (Ala. 1912)