Robert Nislick By Robert Nislick, Esq.
When Massachusetts neighbors start to disagree with each other, it should come as no surprise when someone wants to erect a fence. Suppose that you have had a falling out with your neighbors. His car is loud. Her dog runs around and barks uncontrollably. They park on your property. Their shed encroaches over the property line.
You have tried to approach them like reasonable people. You have asked them to be a little more considerate. Sadly, this has not gone over so well. Now it is tense whenever you see them. They are making your family feel uncomfortable in your own home. You value your privacy, and you feel like your neighbors are invading it.
You want to put up a fence. What can you do? What can’t you do?
“Indeed, the law specifically recognizes the rights of landowners to construct boundary fences. So long as they comport with zoning and environmental laws, any applicable and enforceable private land restrictions that may exist, and do not violate G. L. c. 49, § 21, they are permissible.”[1]
Every town has different rules, and it may be wise to call your local building department before you do anything that may run afoul of the law. For example, in Framingham, “A building permit is required for all fences over six feet in height. Any fence over six feet in height must also meet the applicable property setbacks. Either fence side can face the owner or his neighbor’s property. A fence six feet or less in height can be placed on the owner’s property line.”[2]
By way of further example, the town of Merrimac has a “‘Good Neighbor’ Fence Policy” which advocates, among other things, that you discuss your plan with abutters before doing any work, verify the property line and construct the fence about one foot in, place the finish side out, and not pose a danger to anyone.[3]
If you call a reputable fence company who does work regularly in your town, they will probably be knowledgeable about any particular bylaws that may apply. They will probably be cautious so that your fence sits entirely within your property, and does not encroach onto the adjoining lot.
If you tell the fence installer that you intentionally want to block your neighbor’s view and access to light and air by erecting a ten-foot-high fence on the neighbor’s property, they will probably tell you to call someone else.
But what if your neighbor puts up a fence to spite you?
If your neighbor has erected or is threatening to erect a spite fence, contact Massachusetts land use attorney Robert Nislick, today.
The Massachusetts spite fence statute states:
“A fence or other structure in the nature of a fence which unnecessarily exceeds six feet in height and is maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property shall be deemed a private nuisance. Any such owner or occupant injured in the comfort or enjoyment of his estate thereby may have an action of tort for damages under chapter two hundred and forty-three.”[4]
In addition to awarding damages, the court may also enter injunctive relief abating so much of the fence as exceeds six feet in height.[5]
In one Land Court case, Ms. A erected an eight-foot tall stockade fence to block Ms. B’s view of a lake. Then Ms. B built a deck off her second floor so she could still view the lake. Next, Ms. A planted a fifteen-foot tall tree directly in the way to block that view as well. The Land Court judge had “no doubt whatsoever that the fence and tree were placed there by Ms. [A] with malice and for the purpose of annoying Ms. [B], and that to the extent they exceeded six feet they were not ‘really necessary for any reason.’”[6]
The Land Court ruled that the eight-foot fence was clearly within the scope of the Massachusetts spite fence statute, G. L. c. 49, § 21. Interestingly, the Land Court also ruled that the fifteen-foot tree was a “structure in the nature of a fence” also within the scope of the statute.
How can you analyze whether your neighbor will be liable for erecting a spite fence?
“Malevolence must be the dominant motive-a motive without which the fence would not have been built or maintained. . . . If the height above six feet is really necessary for any reason, there is no liability, whatever the motives of the owner in erecting it. If he thinks it necessary, and acts on his opinion, he is not liable because he also acts malevolently.”[7]
The court will want to know whether the neighbor acted malevolently against you in erecting the fence. There may be a reason, other than malice towards you, that the neighbor erected a fence higher than six feet. In such a case, you would not prevail against him in a nuisance under the spite fence statute. But even if the fence would not be viewed as a spite fence, it may still be illegal for some other reason, and you may be able to compel him to remove it.
Attorney Robert Nislick is a Framingham, Massachusetts, land use attorney. Contact him today for more information.
[1] Frigoletto v. Pirro, Land Court Miscellaneous Case No. 302684 (KCL) (Long, J.) (Jan. 21, 2009).
[2] http://www.framinghamma.gov/FAQ.aspx
[3] http://www.merrimac01860.info/Pages/MerrimacMA_Inspections/Fence.pdf
[5] See Rice v. Moorehouse, 150 Mass. 482, 483 (1890).
[6] See Duey v. Trudel, Land Court Miscellaneous Case No. 06 MISC 336171 (KCL) (Long, J.) (Sep. 28, 2010).
[7] Rideout v. Knox, 148 Mass. 368, 373 (1889).