Spite Fences Don't Make Good Neighbors

The Maine Law Court issued an opinion on November 1, 2011, upholding a Superior Court decision ordering the partial removal of trees for violation of Maine’s spite fence law, 17 M.R.S.  2801. Peters v. O’Leary, 2011 ME 106, ___ A.3d ___. The statute provides that “[a]ny 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.” 17 M.R.S.  2801. Holding that “[t]he plain language of section 2801 anticipates the possibility that a ‘structure in the nature of a fence’ could constitute a fence,” the court agreed with the lower court’s conclusion that “the dense planting of tall trees adjacent to the neighboring property to form a continuous barrier between the two properties created a ‘structure in the nature of a fence.’” Peters, 2011 ME 106, å¦14, ___ A.3d ___. for whether the trees were planted to annoy the neighbors, the court held that the statute does not require a showing that malice was the sole motive for erecting the fence; instead, “the plaintiff need only prove that ‘such was the dominant motive,’ meaning that without that malicious motive, the fence would not have been erected or maintained.” Id. 16 (internal citations omitted). The Superior Court’s finding of malice was supported by “evidence of the number of trees planted; the size, extent, and anticipated rapid growth of the trees; O’Leary’s failure to prune or trim the pear trees and arborvitae other than near his own driveway after planting; O’Leary’s secrecy in making arrangements for the plantings; O’Leary’s own testimony regarding his dealings with the Peterses; and O’Leary’s awareness from discussions with the Code Enforcement Officer that vegetation, once planted, cannot be removed in a shoreland overlay district.”