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Malicious Structure Statutory Construction and Application

Local ordinances relevant to fencing often regulate the construction and application of spite fence.  Often, town and cities limit fences to six feet unless the owner received a variance.  States however have not been uniform in their treatment of spite fence.  Some emphasize the right of a land owner to use the land as per his/her wish and permit spite fence, while other states hold that if the dominant motive in erecting the fence is malicious, and if the fence serves no useful purpose, the neighbor can recover damages and can be granted a court decree ordering the fence removed.  In some states, statutes limit the height of the fence erected maliciously or for the purpose of annoying a neighbor.  However, the increasing tendency is to restrict the use of spite fence. 

In the case of Rapuano v. Ames[i], it was observed by the court that a statute prohibiting the malicious erection of any structure intended to annoy and injure the adjoining owner is construed to include a fence so erected.  Generally, under Connecticut law in order to maintain a successful action against an adjoining land owner who has erected a spite fence, the aggrieved land owner must show:

(1) A structure erected on the owner’s land;

(2) a malicious erection of the structure;

(3) the intention to injure the enjoyment of the adjacent landowner’s land by the erection of the structure;

(4) an impairment of the value of adjacent land because of the structure;

(5) the structure useless to the defendant;

(6) the enjoyment of the adjacent landowner’s land in fact impaired. 

Moreover, in some cases, even other structures have been treated as constituting spite fences.  For example, in the case of Dowdell v. Bloomquist[ii], expert testimony pointed out that western arborvitae trees were not hedge plants.  However, the court in this case observed that a row of arborvitae trees near the property line with a neighboring homeowner’s property can be considered to be a “fence” for the purposes of a spite fence statute that refers to a “fence, hedge, or other structure.”  However in the case of Dalton v. Bua[iii], it was observed that a structure that is not artificially built up — such as a hedge — is not a “structure” for purposes of malicious structure statutes.  Moreover it is also important to note the manner in which the hedge grew.  Therefore in this cases where the hedge grew naturally and was not artificially built, and there was no evidence that the hedge was maliciously planted, the court refused to treat it as a spite fence.

In the case of Downe v. Rothman[iv] it was observed that a hedge was not “fence” or “structure,” within meaning of a New York statute prohibiting a property owner from erecting a fence or structure over ten feet in height which prevents the owner or occupier of adjacent land from enjoying the light or air.


[i] Rapuano v. Ames, 21 Conn. Supp. 110, 145 A.2d 384 (Super. Ct. 1958)

[ii] Dowdell v. Bloomquist, 847 A.2d 827 (R.I. 2004)

[iii] Dalton v. Bua, 47 Conn. Supp. 645, 822 A.2d 392 (Super. Ct. 2003)

[iv] Downe v. Rothman, 215 A.D.2d 716, 627 N.Y.S.2d 424 (2d Dep’t 1995)

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