Can I build a tall fence to put some distance between my crazy neighbor and me?

Making sure to comply with state laws and any homeowners' association rules before constructing a fence, particularly for the express purpose of limiting contact with a neighbor.

Question

I really dislike my neighbor. I don’t want him to be able to look onto my yard, come onto my property, or interact with me in any way. I’d like to construct a tall fence to keep him away, but I’ve heard that there are laws against “spite fences.” Would it be illegal to build a fence for this purpose?

Answer

The answer to this question depends on where you live -- both which state and what type of community.

If you live in a community with a homeowners' association (subject to bylaws, rules, and covenants, conditions, and restrictions, otherwise known as CC&Rs,) there might be strict guidelines about when and whether you can construct a fence. The association might require you to use a certain type of wood, or require that you receive a certain type of approval. See Nolo's articles on "Living Under a Homeowners' Association" for more information.

Even if you do not live in a community governed by a homeowner’s association, different states have different laws relating to spite fences and bordering fences generally. Typically, a property owner can construct a fence on his or her property. But some states – including large ones, like California – have enacted statutes to allow a private cause of action for the construction of a fence built for malicious purposes.

So, if you want to construct a fence, what should you do?

First, check with your homeowners' association (if you have one) for its aesthetic regulations and be sure to follow those.

Second, see whether your state has a statute that addresses this issue. Many state statutes place specific limitations on the height of the fence. New Hampshire’s statute, for example, would allow a neighbor to sue for a fence over five feet. Therefore, if you live in New Hampshire and want to eliminate the possibility that your hostile neighbor will sue you for the construction of your fence, be sure that your fence is under that five-foot limit.

City or municipal statutes may also apply to you -- check your local government's planning or building department for details. Denver, Colorado is an example of a city that carefully regulates fence heights, materials, and required permits.

You should also refrain from making the fence needlessly ugly, or from blocking light onto your neighbor’s property. These are the sorts or gratuitous and avoidable actions that can cause further strain on your relationship – and provoke a lawsuit or retaliatory action.

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