Spite fences are fences or other obstructions that are installed by one property owner in order to annoy a neighbor or neighbors and interfere with their property rights. Generally, a property owner can use their property as they set fit, subject to certain limitations. Examples of limitations that may preclude a property owner from installing a spite fence, are federal, state, and local laws, including zoning ordinances and community association bylaws, rules, and regulations, if applicable. Accordingly, this article will discuss potential claims that you may have against a neighbor who has improperly constructed a spite fence, chicken coup, shed, structure, or other obstruction.
What Is a Spite Fence?
There are many cases in which neighbors feud, and sometimes those frustrating neighbors will install a spite fence, structure, or other obstruction. Accordingly, it is not uncommon for a property owner to seek a legal remedy to have a spite fence or other obstruction removed.
In order to have a spite fence or other obstruction removed, a property owner must establish the following elements in court:
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- The neighbor erected a fence or other obstruction,
- The fence or obstruction was solely for malicious purposes, and
- That the fence or obstruction serves no other purposes.
Kuzniak v Kozminski, 107 Mich 444, 446, 65 NW 275, 276 (1895).
Accordingly, while these cases commonly involve fences, if a property owner establishes the above elements of a nuisance claim, a court will remove other types of examples as well. By way of example, in Flaherty v Moran, 81 Mich 52, 55, 45 NW 381, 381 (1890), a property owner was building a home and his neighbor was outraged over the home’s location. The neighbor demanded the home be set further back from the road or else the neighbor would build a twelve-foot fence between their properties. Id. The individual continued with the construction of his home, without altering the placement, and the neighbor, almost immediately, built a twelve-foot fence, blocking the light and the adjoining property owner’s view. Id. Despite the neighbor’s claims that the fence was for privacy and plants, the Court found that “the fence serves no useful or needful purpose, and was built, and is now maintained, out of pure malice and spite” and affirmed the trial court’s order that the fence be torn down. Id. Accordingly, establishing that a spite fence is nuisance will typically be fact specific inquiry that is decided on a case-by-case basis.
However, it is important to note that if a spite fence, or other obstruction, is constructed for both a malicious purpose and a proper purpose, a claim for nuisance to remove a spite fence or other obstruction will fail. Id. There are various unpublished cases that specify valid purposes for a fence, such as: to prevent harassment and provide privacy for a dog, for child safety, anti-theft, or aesthetics, and self-protection or to protect property rights. As such, it is important to evaluate whether a spite fence or obstruction may have a proper purpose, in addition to a malicious purpose, prior to pursuing a claim.
Spite Fences Can Be a Nuisance Per Se if Zoning Ordinance Violation is Established
A nuisance claim to have a spite fence removed based on a violation of a municipal zoning ordinance is typically easier to demonstrate. Therefore, it is also important to investigate whether a spite fence complies with the township, county, city, or other governing municipality’s zoning ordinances. Many zoning ordinances can be found online or obtained from the municipality itself.
MCL 125.3407 of the Michigan Zoning Enabling Act states, in pertinent part, “Except as otherwise provided by law, a use of land or a dwelling, building, or structure, including a tent or recreational vehicle, used, erected, altered, razed, or converted in violation of a zoning ordinance or regulation adopted under this act is a nuisance per se.” It is well-established in Michigan that private citizens can bring actions to abate public nuisances, arising from the violation of zoning ordinances, provided that they suffer a different harm than the general public. See Towne v Harr, 185 Mich App 230, 232; 460 NW2d 596 (1990);Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App 186, 190; 540 NW2d 297 (1995).
Nuisance per se cases, which involve the violation of a zoning ordinance, are extremely fact specific as municipal ordinances may vary between municipalities. However, it is important to remember that if a spite fence violates a zoning ordinance, a court may order that the spite fence be removed.
Spite Fences Can Violate HOA Bylaws
If you live within a condominium association or homeowners association, there may be restrictive covenants that govern the installation and maintenance of fences. If your neighbor failed to comply with HOA bylaws in installing or maintaining a fence, you may be able to sue to enforce the restrictive covenant. It should also be noted that if the fence is in a site condominium, MCL 559.207of the Michigan Condominium Act permits a co-owner to bring a lawsuit against another Co-owner to enforce the governing documents.
Spite Fences Can Violate Easements
Finally, it is important to investigate whether there are any recorded easements that would restrict a property owner from installing a fence in a certain location. By way of example, a spite fence could not block an easement for ingress or egress. In other circumstances, a spite fence could not be installed if it interferes with an easement related to having an unobstructed view or it blocks a utility easement. If the neighbor is in violation of the easement, you could be successful in having the obstruction altered or removed.
Conclusion
If you are unhappy with your neighbor’s spite fence or other obstruction, you might have some viable options for its removal or alteration including a claim for common law nuisance, a claim for nuisance per se based on a zoning ordinance, a claim for violating restrictive covenants in HOA bylaws, or a claim for violating an easement agreement. in However, it is imperative that you act immediately, or you could be barred from litigating the matter and lose out on any potential remedy. Understanding the laws and circumstances surrounding nuisance claims against a neighboring property, involving spite fences or other obstructions, can be difficult without the help of an experienced real estate attorney. A real estate attorney will be able to help navigate through the applicable laws and protect your property rights.
Kara Moore is an attorney at Hirzel Law, PLC and focuses her practice on general real estate litigation. Ms. Moore received her Bachelor of Arts degree in Communication from Bob Jones University in South Carolina. Ms. Moore earned her Juris Doctor degree from Western Michigan University Cooley Law School. While in school, Ms. Moore made the Honor Roll for six terms and the Dean’s List for seven terms. Ms. Moore is a member of the Macomb County Bar Association and the Genesee County Bar Association. Ms. Moore is experienced performing legal research, arguing motions, conducting depositions, and drafting pleadings and discovery in real estate litigation, probate litigation, landlord/tenant litigation, and civil litigation, and drafting estate planning documents. She can be reached at (248) 480-8704 or at kmoore@hirzellaw.com.
