Connecticut Rules For The 'Spite Fence'

Our office was contacted by a client who had a neighbor erect a fence on the neighbor’s property which the client felt was built solely for the purpose of harassing him.

It was unsightly, served no useful purpose and detracted from the value of his property. The question was asked: What was the law in the State of Connecticut as it related to “spite fences”?

Two statutes apply to the erection of “spite fences”: Sec. 52-480. Injunction against malicious erection of structure provides that an injunction may be granted against the malicious erection, by or with the consent of an owner, lessee or person entitled to the possession of land, of any structure upon it, intended to annoy and injure any owner or lessee of adjacent land in respect to his use or disposition of the same.

And Sec. 52-570. Action for malicious erection of structure states that an action may be maintained by the proprietor of any land against the owner or lessee of land adjacent, who maliciously erects any structure thereon, with intent to annoy or injure the plaintiff in his use or disposition of his land.

Sections 52-480 and 52-570 of the Connecticut General Statutes were originally enacted as parts of a single Public Act.  Section 52-480 provides for equitable relief (an injunction for continuance of the structure or removal) and Section 52-570 provides for legal relief (money damages) for the malicious erection of “any structure.”   

In the almost century and a half since their enactment, the statutes and their successors have been applied only against man-made structures. Although hedges can be planted with the same malicious intent seeking to obstruct views and annoy a neighbor neither the legislature in enacting the statutes, nor the courts in their interpretation of them,  have held that they can be “structures” within the meaning of the statutes.

So under what circumstances can one commence a successful action for the erection of a “spite fence”?  In Whitlock v. Uhle, (1903), the Connecticut Supreme Court identified a six-factor test to determine whether a structure has been maliciously erected. Those factors are: (1) structure erected on defendant's land; (2) malicious erection of structure; (3) intent to injure enjoyment of adjacent landowner's land by erection of structure; (4) impairment of value of adjacent land because of structure; (5) structure is useless to defendant; and (6) enjoyment of adjacent landowner's land is in fact impaired.

 The main issue to be determined  is whether the structure was erected with malice.  Courts can infer or determine malice  from the character, location and use of the structure, or from the actual statements made by the defendant, rather than by an inquiring into the actual motive in the mind of the party erecting it.

Although good fences make for good neighbors, it is important to keep in mind that a dispute between neighbors which later leads to the erection of a structure that might appear to be spitefully built could lead to the unwanted prospect of costly litigation.

The better course of action is to resolve this between neighbors themselves or utilize the services of a third party to mediate the differences rather than destroying the tranquility that should exist at the place where you should otherwise be trying to escape some level of aggravation.

Richard P. Hastings is a Connecticut personal injury lawyer at Hastings, Cohan & Walsh, LLP, with offices throughout the state.  He has been named a Connecticut Super Lawyer and is the author of the books: "The Crash Course on Child Injury Claims"; "The Crash Course on Personal Injury Claims in Connecticut"; and "The Crash Course on Motorcycle Accidents."  He can be reached at 1(888)CTLAW-00 or by visiting www.hcwlaw.com.