It’s my property and I’ll do whatever I want on it? You’ve heard this phrase before, but what if you hear it from your neighbor and what he wants to do is to purposefully build a fence solely to destroy your view or otherwise harass you?
This is known as a spite fence – a fence, structure, row of trees, bushes, or hedges, constructed or planted between adjacent lots by a property owner intending to annoy a neighbor. The fence usually serves no purpose to the owner.
In Washington, a court may enjoin the construction of a spite fence or order its removal:
An injunction may be granted to restrain the malicious erection, by any owner or lessee of land, of any structure intended to spite, injure or annoy an adjoining proprietor. And where any owner or lessee of land has maliciously erected such a structure with such intent, a mandatory injunction will lie to compel its abatement and removal.
The wording of Washington’s statute appears limited to manmade structures, which begs the question – can my neighbor plant bamboo or other fast growing trees that will accomplish the same goal as a spite fence, but not run afoul of the statute?
There are no published Washington cases addressing this question, but the Washington Court of Appeals, in an unpublished opinion, Tilkov v. Duncan, #69615-7-I filed July 28, 2014, held that 16 cypress trees could be a “structure” within the plain meaning of RCW 7.40.030.
In defining the term “structure,” the court looked to the current Webster’s Third New International Dictionary which defines “structure,” in relevant part, as: “something made up of more or less interdependent elements or parts: something having a definite or fixed pattern of organization.”
Based on this common definition, and noting that it had previously held that if a row of trees looks and acts like a fence, then courts can treat it like a fence, the Tiklov court held that when in artificially arranged configurations, trees can form a “structure,” as that term is used in RCW 7.40.030.
This blog post is offered for general information and educational purposes only. It is not offered as legal advice and does not constitute legal advice or opinion. Although I intend to keep this information current, I do not promise or guarantee that the information is correct, complete, or up-to date. You should not act or reply upon the information in this post without seeking the advice of an attorney.