Submitted by admin on Sun, 03/15/2009 - 09:52
My neighbor's fence is about seven feet high, and butt-ugly. Isn't that an illegal 'spite fence'? Posted by madneighbor on The Forum.
Maybe. Massachusetts General Laws Chapter 49, Section 21 says: "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." Chapter 243 is the MA law that deals with the abatement of a nuisance, a type of tort in MA. Under Section 1 of that law, if the plaintiff prevails the court may issue a judgment for damages and costs AND issue an order requiring the person who built the fence to abate it (make it smaller) or remove it.
Obviously the language of the above passage (e.g., 'maliciously erected') is key to establishing a cause of action. In other words, you will have to produce evidence that the neighbor built the fence not for some legitimate purpose but to, essentially, be a pain. For that purpose, you could present oral testimony, any letters, or even pictures that tend to demonstrate that the fence was not built for typical reason.
However, perhaps the easiest solution to this type of a problem, a solution that may not require an attorney, is to check with your town or city for its local ordinances relevant to fencing. Often, town and cities limit fences to six feet unless the owner received a variance. Good luck.