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“General” Easements: A Cautionary Tale In a previous post, we discussed the way the “magical” power of law in real estate shifted from the physical and verbal

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Spite Fences

Spite Fences: When Is A Tree A Fence?

Just because you don’t like the way your neighbor’s fence blocks your view or its garish pink paintjob doesn’t make it unlawful (although if you have an HOA, you might have recourse through your association). However, if a fence “unnecessarily” exceeds 10 feet in height and is erected maliciously simply for the purpose of annoyance and irritation, then it may constitute a private nuisance, infringing on your right to enjoy your property.

Since 1885, California real estate law has provided recourse for such so-called “spite fences,” and you can file a civil action to be rid of the offensive fence. Specifically, the California Civil Code protects against “Any fence or other structure in the nature of a fence” (Civ. Code §841.4). So what counts as a fence? Two cases in the last 20 years have determined that under California law, trees can constitute a spite fence.

 

Mean Evergreens and Malicious Eucalyptus

In Wilson v. Handley (2002), Wilson and her mother Cassady, who live next to one another on properties that are each adjacent to the Handley property, were upset that the row of evergreens the Handleys had planted would eventually block their view of Mount Shasta. They argued that the evergreens constituted a “spite fence,” as the Handleys apparently planted them in retaliation for Wilson’s plan to build a two-story log cabin close to their shared property line. Amusingly, the appellate court’s decision begins with a quote from a letter by William Blake:
“Every body does not see alike…. The tree which moves some to tears of joy is in the Eyes of others only a Green thing that stands in the way.”

Such a case raises many questions about the “nature of a fence.” As things of nature, the trees would inevitably grow above 10 feet, but “[t]rees are neither built [n]or constructed.” Trees would thus seem not to fall under the scope of a “structure” at all. That was enough for the original trial court to determine that trees lay outside the scope of the spite fence law.

The appellate court did not agree: quoting Webster’s Dictionary on the definition of “construct,” the court argued that while “only God can construct a tree,” a property owner can indeed construct “a row of trees[.]” (Wilson v. Hadley (2002), 97 Cal. App. 4th 1301)

There were many other arguments and complexities to the case, and determination of the fate of these particular evergreens was remanded back to trial court. However, it was definitively established that trees in California could be a fence when placed on or near the boundary line, and those trees could be a spite fence should they meet the two conditions.

In Vanderpol v. Starr (2011), the California Court of Appeal once again faced off against malicious trees—this time the offending foliage began with a thin line of eucalyptus trees. Originally, the row of eucalyptus on the Starr property did not block the Vanderpols’ ocean view, and they were kept trimmed per an agreement between the owners so as to maintain that view. Due to some ill-chosen words, however, a feud began that eventually resulted in the Starrs planting 85 more trees (pines and cypresses now bolstering defenses on the front line).

The court agreed with the Wilson decision, and found that the row of trees met the elements of a malicious structure exceeding 10 feet in height. However, because the jury was not asked to find one way or the other about the final element, whether the owners were “injured in either their comfort or enjoyment of their property,” the case was remanded for a new trial. (Vanderpol v. Starr (2011), 194 Cal. App. 4th 385)

So once again, the court confirmed that under the right circumstances, trees can be a fence, or at least act in a manner becoming of a fence. Although it was not clear that in these specific cases the “spite fence” law applied, and while the elements of the law can be quite tricky to establish, it is clear that the California court is willing to interpret what counts as a “fence” quite broadly. So if you are planning to plant some trees on your boundary line, you may want consider your intentions as well as your location. Remember: don’t plant angry.

For more on boundary disputes, see “Who is responsible for a boundary fence?” If you are involved in a boundary dispute, consult with our attorneys at Greenacre Law today: we have expertise in California real estate law and boundary issues of all kinds, and we would be happy to advise you on your unique situation.

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