Everyone has heard of the phrase that “good fences make good neighbors”. Sometimes, it is that very fence that becomes the catalyst for neighbors to have a disagreement. In the United States, the term “spite fence” refers to an overly tall fence or some other barrier (e.g. row of trees or hedges) that is erected between two lots with no legitimate purpose other than to annoy the neighbor. This structure may have the effect of obstructing the view between lots, blocking sunlight to the neighbor’s plants and trees, or otherwise impacting the aesthetic view of the neighborhood which can cause property values to decrease. What can be done about a neighbor that erects a “spite fence” in Michigan?
The fifty states all have various laws and standards on what constitutes a “spite fence”. In many states, fences that exceed certain statutory heights or were erected purposely to block a neighbor’s view constitute a private nuisance and can lead to a court order to pay damages and remove the structure. Michigan also considers a “spite fence” to be a nuisance, but only the evidence establishes specific conditions under the law:
- The elements of a “spite fence” nuisance case in Michigan are that a defendant (1) erected a fence or other obstruction, (2) which serves no useful purpose or advantage to himself, and (3) did so with malicious intent. Burke v Smith, 69 Mich 380, 382; 37 NW 838 (1888).
- Where erection of a fence is motivated by both a purpose useful to defendant and by spite, a cause of action cannot be maintained. Kuzniak v Kozminski, 107 Mich 444, 446; 65 NW 275 (1895).
In Michigan, a “spite fence” case is defeated if the defendant establishes by affidavit or testimony any credible evidence that erecting the fence had a useful purpose, EVEN IF the defendant also admits that spite was also a motivating factor. A plaintiff would have to produce evidence showing a valid dispute to the proposition that the fence had an advantage or value to the defendant for no other reason but spite.
It is not enough to allege that the fence was erected out of spite but that it actually interfered with the neighbor’s private use and enjoyment of land to maintain a private nuisance action:
- A defendant is subject to liability for a private nuisance (or nuisance in fact) for a nontrespassory invasion of the plaintiff’s interest in the private use and enjoyment of land if: (1) the other has property rights and privileges attached to the use or enjoyment interfered with; (2) the invasion resulted in significant harm; (3) the actor’s conduct was the legal cause of the invasion; and (4) the invasion was either intentional and unreasonable or unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultra hazardous conduct. Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App 186, 193; 540 NW2d 297 (1995).
- To establish the existence of a private nuisance, the plaintiff must show significant harm resulting from the defendant’s unreasonable interference with the use or enjoyment of the property. Adams v Cleveland-Cliffs Iron Co, 237 Mich App 51, 67; 602 NW2d 215 (1999).
Here are some recent Michigan appellate cases where “spite fence” claims have been defeated:
- Winkelbauer v Braley, unpublished per curiam opinion of the Court of Appeals decided September 26, 1997 (Docket No 195549) – The defendant constructed a 6-foot fence in 1992 that obstructed the view of the plaintiff-neighbor’s lake. Plaintiff filed a nuisance action arguing that the fence served no useful purpose to the defendant. The defendant stated by affidavit that they erected the fence to protect their privacy, to keep their children in the yard, to prevent theft from their yard and for aesthetic purposes. The circuit court and the Michigan Court of Appeals denied plaintiff’s claim on the basis that she failed to establish any dispute of material fact to the useful purpose of the fence to the defendant).
- Adams v Beaudry, unpublished per curiam opinion of the Court of Appeals decided March 2, 2004 (Docket No 244485) – The defendant erected a 7.5 foot fence in 1991-1992, and the plaintiff purchased the neighboring property in 2000. Plaintiff filed a nuisance action alleging that the fence blocked his view of the lake, infringed upon his enjoyment of the property, and diminished the market value of his land. The circuit court and the Michigan Court of Appeals denied his claim, finding that the defendant demonstrated a useful purpose of the fence for thwarting trespassers trying to access the lake through his property and that the plaintiff’s awareness of the fence when he bought the property was fatal to his case.
- Grace v Johnson, unpublished per curiam opinion of the Court of Appeals decided October 25, 2016 (Docket No 327468) – Plaintiff has a horrible relationship with the defendants and alleged that defendants erected a “spite fence” out of “malice” on the property line. The defendants alleged that the fence was erected to keep their dog in the yard. The circuit court and the Michigan Court of Appeals denied the claim and found that the useful purpose of the fence to the defendant was enough to prevail even if the construction of the fence was partially motivated by malice.
If the erected fence is not in compliance with local zoning ordinances, then the angry neighbor could report the violation to the zoning enforcement officer. If the municipality agrees that the fence violates the law, it can impose fines or take other legal action against the property owner (including a permanent injunction against a noncompliance fence under penalty of contempt of court).
A “spite fence” claim is difficult to prevail on in Michigan and any potential litigant can benefit from the advice and guidance of a skilled property law attorney to illuminate the way. If you have any further questions about property law or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
