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Can a row of trees planted on your property be considered a “spite fence”?

Posted Thursday, August 7, 2014 by Christopher L. Thayer

alt textUnder Washington law a party may not construct a fence or other “structure” on their land when it is “maliciously” erected with the intention to “spite, injure or annoy an adjoining [landowner].” RCW 7.40.030. Often referred to as the “spite fence” statue, this most often comes up in neighbor disputes where one party erects a fence out of “spite” in an effort to deliberately annoy his or her neighbor. Generally a court will look at 3 factors in determining whether a given structure qualifies under the statute: (1) damages an adjoining landowner’s enjoyment of his property in some significant degree; (2) is designed as the result of malice or spitefulness solely to injure and annoy; and (3) serves no real useful or reasonable purpose.

The statute authorizes the issuance of an injunction to compel abatement and removal of the structure, but only where malevolence is shown as dominating motive. As a general rule, however, the statute does not authorize injunctions against structure which enhance the value and enjoyment of land and are not nuisances, regardless of motives of owner and intent to annoy the neighbor.

In a recent case, the Washington Court of Appeals (Division I), was asked to address whether a row of trees might be considered a “structure” under this statute. In Tilkov v. Duncan (July 2014), the court noted that the term “structure” was defined as:

[t]he current Webster’s Third New International Dictionary … defines “structure,” in relevant part, as: “2.b: something made up of more or less interdependent elements or parts: something having a definite or fixed pattern of organization.”

The Tilkov court noted that there was no distinction between man-made versus natural parts, and concluded that “if a row of trees looks and acts like a fence, then courts can treat it like a fence… .” It should be noted that Tilkov is an unreported court decision, meaning that, although the court’s reasoning is available for review, it has no precedential value.

So what does this mean, can you plant a row of trees just to “stick it” to your neighbor who has annoyed you? Under a strict interpretation of the law, this should not be precluded – as a tree or row of trees is not a “structure” per se. However, under the somewhat strained analysis of the Tilkov decision it is possible that a row of trees could be treated as the equivalent to a fence, and therefore subject to the spite statute. Neighbor disputes are often contentious and expensive to resolve. Before planting that row of trees or building that fence, try sitting down with your neighbor in a neutral setting and see if you can work out your issues amicably. If that fails, give me a call at (206) 805-1494 to discuss your options to make sure you are not creating even more problems, and potential expense or legal liability, down the road.

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