A recent Slate article discussed a property dispute between Donald Trump and a Scottish couple who refuse to sell him their land for a golf course. Trump’s latest move in the fight was to build a fence around their house and then invoke an arcane law requiring them to pay for half of the costs. As the article explained, fence laws like this developed over the years as a response to problems with roaming livestock. In some places, laws were enacted requiring property owners to fence in their animals, but in places where free grazing was encouraged, the responsibility for fencing was often imposed on the people who wanted to fence out their neighbors’ animals. Since neither of these options is ideal, a third choice—cost sharing—was developed to prevent free riders and more evenly distribute costs. Unfortunately, as illustrated by the Trump dispute, cost sharing fence laws can also encourage harassment.
In fact, there are all sorts of fence laws intended to prevent and resolve these sorts of fence fights. Some of the most interesting are “spite fence” laws, which prohibit property owners from putting up fences mainly intended to annoy their neighbors.
Mill Pond Condominium Association v. Manalio provides a good example. The Manalios owned the Harbor Flag Shop in Wells, Maine, and after a dispute with the condo association about an easement, they developed an “excessive enthusiasm” for the “history of piracy and artifacts associated with piracy.” They also developed a “sincere interest in annoying the neighboring condominium owner,” and these interests converged in a variety of interesting fence decorations. As the court recounted:
Among the many signs, flags, posters, banners and displays affixed to the fence were a banner entitled Death Zone, No Prisoners with two skulls and crossbones, a sign for “Graveyard” pointing to the condominiums, Calico Jack displays with a skull and crossed swords, a sign “No trespassing, Violators will be shot, Survivors will be shot again.”, and two posters of primates with titles “Those Neighbors!” and “Lala la la la la la”.
The Maine spite fence law states that:
Any fence or other structure in the nature of a fence, unnecessarily exceeding 6 feet in height, maliciously kept and maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance.
Since the Manalios’ fence was less than 6 feet tall, the court allowed them to keep all their signs up, as well as their flags, so long as they “do not become so closely spaced as to become ‘in the nature of a fence.'” The skulls and other things placed on top of the fence, however, rose above the 6 foot mark and had to be removed. Although Mr. Manalio argued that these were just decorations for the store and claimed that “he was from New Jersey he could find cheaper and better ways of harassing his neighbors,” the court had no trouble finding that their purpose was to annoy the neighbors.
While the pirate theme is an interesting twist, it’s not all that extreme compared with other spite fence cases. Consider Gertz v. Estes, an Indiana case where a boundary line dispute devolved to the point that the Gertzes put up an 8 foot tall fence will nails protruding from the edges and security cameras pointed toward the Esteses’ property. The Gertzes were ordered to remove the fence under the Indiana spite fence law, even after they cut the top to keep it under 6 feet tall.
In a Virginia case, Berg v. Cline, Mr. Berg installed surveillance cameras and motion-activated super bright flood lights after the Clines moved in next door, allegedly to stalk and intimidate them. In response, the Clines put up a 32 foot high fence, and then Berg sued them to take it down, threatening that he would just put up higher perimeter lights if they didn’t. The court, noting Mr. Berg’s bad behavior, refused to order the fence removed, despite its excessive proportions.
It’s an interesting question whether Trump’s fence could be considered a spite fence. Many spite fence laws only prohibit fences over a certain height, as in the pirate fence case, and these statutes would seem to allow an owner to use a cost sharing fence law to harass the neighbors. But sometimes the courts will find a spite fence even if it’s shorter than the legal limit, as with the nail-tipped fence in Gertz v. Estes.