April 19, 2019
New Hampshire has a statute—RSA 476—titled “Spite Fences” that was enacted in 1887. Under the statute, a spite fence is “any fence or other structure in the nature of a fence, unnecessarily exceeding 5 feet in height, [and] erected or maintained for the purpose of annoying the owners or occupants of adjoining property.” If a court finds that a fence satisfies these criteria, the court could conclude that the fence is a nuisance and order that it be removed. The court may also award damages.
There is very little New Hampshire case law on spite fences. The New Hampshire Supreme Court has considered spite fences only twice, in 1897 and 1900, and I have not found any New Hampshire superior court orders involving spite fences. The 1897 case involved an unpainted and non-clapboarded building 15 feet tall that was built close to the property line. The unsightly building blocked the neighbor’s view and sunlight. The Supreme Court held that the spite fence law did not apply to buildings despite the likelihood that the building was constructed for malicious intent.
The 1900 case involved a fence of “timbers” and “rough boards” and essentially says that a spouse not involved in the construction of a spite fence is not culpable.
There are court cases in other states involving intentionally ugly or high fences that courts found to be spite fences. For example, in 2008 a Massachusetts court ordered that a sheet-metal fence spray painted with “No Trespassing/Police Take Notice” be removed because it was a spite fence that had been erected in retaliation for a neighbor’s complaint to the zoning board.
Although I am unaware of any New Hampshire case in which this has occurred, it is possible that a line of trees or hedges near a property line could be deemed a spite fence. Courts in Rhode Island and California (and perhaps elsewhere) have concluded that a line of trees can constitute a spite fence. The Rhode Island case consisted of 40-foot tall arborvitae trees installed, like the fence in the Massachusetts case mentioned above, in retaliation for the neighbor’s concerns in a zoning board matter. The court ordered the planter of the trees to remove the trees or keep them trimmed to 6 feet in height. In a California case, the line of trees threatened to block the plaintiffs’ view of Mount Shasta.
If, out of spite, your neighbors plant a hedge or a line of trees that blocks your view of Mount Monadnock, you might be able to persuade a New Hampshire court that the hedge or trees is a spite fence. Proving that your neighbors’ primary motivation was to annoy you may be difficult, as you neighbors will say that the trees are necessary for their privacy. However, if the facts are on your side it would be an interesting case.
In addition to being an owner at BCM, Jason is vice-chair of the New Hampshire Bar Association’s Ethics Committee and lives in Peterborough.
This article was originally published in The Monadnock Ledger-Transcript.