Alexandria Dispute Raises Question of “Spite Fence” Liability

In my torts class, we discuss “spite fence” cases where neighbors change structures that are maliciously erected to block sunlight or views. An interesting case has arisen not far from my home in the nearby Del Rey area of Alexandria. Owner-architect Gaver Nichols has objected to garage construction that will block both light and air for Paul and Patrice Linehan’s kitchen’s window — leaving a view much like this one to enjoy. There appears to have been bad blood between the neighbors. What is particularly interesting is that Nichols designed, built and sold the Linehans’ house to them in the mid-1990s.


Nichols is building the garage two feet from the property line and blocking the only first floor window on that side of the Linehan home.

The lot depiction shown here does make the location look more spiteful than sensible, but that may not matter.

Nichols previously erected a fence along the property line in a move that outraged the Linehans. He then took down the fence and replaced it with a trellis in front of the Linhans’ window. He was acting within the city code despite the impact on his neighbor. City manager Mark Jinks insists that, while they ask people to “take neighbors’ concerns into account,” they cannot deny permits if they otherwise comply with the law. Nichols should know. He was one of those who successfully pushed through a change in local zoning law in 2009 to reduce the required setback from the property line for garages from eight feet to one foot

Jinks rejected the claim of the Linehans that this is an illegal obstruction of ventilation and light. The Linehans have objected that they did not get true notice of the construction, which notably began the Linehans were out of town for a week. You only have 15 days of the start of construction or within 30 days of the permit’s approval to object.

The case raises an interesting question of an aesthetic nuisance. Generally, such nuisances are rejected by the courts. Likewise, since we do not follow the English rule of “Ancient Lights,” we do not generally enforce a right to sunlight or views. However, the courts will enjoin “spite fences” or obstructions that are put up out of anger or malice. We have seen a few cases where trees are planted to block views or high wall built to leave backyards in darkness after long periods of tensions. Thus, in Vanderpol v. Starr (2011), a state appellate court held that a row of trees that one property owner grew along the boundary blocking an ocean view was done out of spite.

Some people will sue in private nuisance to challenge spite fence constructions. However, courts tend to look with skepticism on such claims if the construction meets permit requirements and has an independent function. California has a formal spite fence law:

“Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. Any owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance prescribed in Title 3, Part 3, Division 4 of this code.”

Civil Code Section 841.4

A few years ago, the Virginia Supreme Court did allow people to sue neighbors for damaging trees, but that was direct harm rather than spite claims.

The problem here is that a garage has an obvious purpose separate from any bad blood existing between the neighbors. Alexandria homes, particularly in Del Rey, tend to be on small lots and close with other structures. He would have a strong a non-malicious claim to make and may argue that there is no practical place left for a garage.

Kudos: Christopher Brassfield

50 thoughts on “Alexandria Dispute Raises Question of “Spite Fence” Liability”

  1. Speaking of spite construction: In my area, a homeowner put two porta-potties flanking his driveway out by the street, to annoy neighbors that he has been feuding with. The neighbors called the board of health, demanding that they be removed. But the homeowner pointed out that the doors were sealed and the structures were “nonfunctional,” and thus the complaint had no merit. The board of health director ended up agreeing with the homeowner. The homeowner then painted the pseudo-privvies a bright color, for further effect.

    1. That only works if your sense of aesthetics is congruent with having port-a-potties decorating your front yard. I wonder if he’s feuding with the neighbors because he had things like cars up on blocks lying about.

      1. Teaching Spastics to Dance – taste is very personal. Both my wife and I collect art and visit with other collectors. She and I have very different tastes in art, as do our friends. I would not buy what she buys and she would not buy what I buy. Still, I appreciate what she buys. And I appreciate what others would buy.

  2. @squeek

    you are right on re “collitch” educated folks – many of them have never opened a book since attaining their degrees. Educated indeed! Conversely I know many people who don’t even have an associates degree who are life long eager learners. Open minded, consistently curious and interesting people. We need to drop the emphasis on creds and focus who people are and what they are all about.

    1. A recent piece of survey research in Mexico had it that 66% of the respondents took the view that the U.S. Government was out of bounds in preventing any Mexican from settling in the United States. So, they figure our country is really common property (or perhaps that it’s their property).

  3. @ squeek

    great video. thanks for sharing. BTW: did you realize that as a HRC critic you are “uninformed”? The untalented fat tw^t Amy Schumer sez we are. where the hell is Milo when we need him? She needs to be seriously fat shamed and otherwise…

    1. These idiots don’t bother me. They are just a manifestation of typical liberal intellectual arrogance. It starts young, with 20 year old college students who think they know all about life, and how everything should work. The problem is, they don’t seem to ever grow out of it. Which is why a lot of college-educated white folks are the dumbest bunnies on the planet. Their minds closed young, back when they were in college, and now you can’t get a new thought squeezed in there.

      That and sheer laziness. What did you do to help with the Civil Rights Movement, Daddy??? Oh, I was a Democrat! (While they live in a white enclave, and send their kids to private schools, and support letting black criminals out of jail.)

      BTW, have you heard of Helene Fischer. She is German, and sings the prettiest Ave Maria I think I have heard.

      https://www.youtube.com/watch?v=KCNgQUVPqdk&list=RDMMKCNgQUVPqdk

      Squeeky Fromm
      Girl Reporter

      1. You’re killing me with cool videos I can’t watch. I’m going to go find some free WiFi to check these out. 🙂

  4. @capitalistroader1

    re: ” But Keillor is a member of the clerisy; perhaps his neighbors belonged to the basket of deplorables and as such deserved no property rights.”

    Thanks for the laugh! My latest bumper sticker, though I am a Jill Steiner, reads “proud deplorable”

  5. This is a common problem in CA, with our burgeoning population and spiraling cost of housing. As land resources got tighter, lots became postage stamp sized. Sometimes you can reach out a window and touch the wall of the adjoining home. In rural areas, the big fights are over easements.

    In European countries like Breda, far north with limited winter sunlight, access to natural light is part of the code. Buildings often have central atriums, and other clever methods of bringing natural light to the workers within. But Breda is not packed like sardines yet.

    Squeaky – if true, that’s a really crappy neighbor. Enough to convince a judge?

    We have the right to do with our property as we wish. And living with neighbors can be very trying. If not the garage, then he could park a rotting VW bus and spray paint it as long as it’s in his backyard. Neighbor wars can get absurdly ugly.

    But it’s not just here that it happens. When I was in Ecuador I heard about a dispute between neighboring wealthy landowners. One of them decided to start an ecotourism business in the rainforest. So his neighbor burned his section of jungle to the ground just to ruin the view and spoil his business plans.

  6. Years ago, the late Dean Barnett said he’d had bad experiences with architects, inasmuch as their priority is getting their artistic rocks off and not seeing to the needs of their clients. This guy sounds like a godawful piece of work. You see the work product of architects in the post-war period and compare it to pre-war structures, you cannot help but despise them and the people who commission their major structures.

      1. @SteveG

        OK! It is easy. First, find the image that you want to post. Right click the image and you will have several options. Usually, you use the “Copy Image Location” option. Left click that option, and then come here, and do a right click on an empty space. Then hit, the “paste” option. That should give you a file name that ends in dot jpg.( I spelled out the dot.) That should work, and if so you will get an image like this one of Lizzie Borden’s father:

        https://poemshape.files.wordpress.com/2011/01/poet-robert-frost-in-affable-portrait-axe-slung-over-shoulder.jpg

        Now, there are at least 2 provisos. Sometime there will be some junk looking stuff after the jpg like ?blahblahblah. Or maybe size=blahblahblah. If so, delete everything from the ? to the end. Because that will give you a link, and not a picture.

        The second proviso is that sometimes you have to hit the “Copy Link Location” option when you right click the image. Usually not. and usually hitting “Copy Image Location” works.

        I hope that helps you!

        Squeeky Fromm
        Girl Reporter

    1. Wow, Lindahans’ house is ridiculously close to the property line. Must not be any reasonable construction bylaws in that jurisdiction.

  7. Buyer’s beware. If no CC&R’s exist for the development and you purchase the property because you value the “ventilation & light” features, then you should become familiar with the county code restrictions that protect that feature. If none exist, then petition the county government to provide them or become very good friends with your neighbors. Or sell quickly because your property value is about to take a hit.

  8. What Steve Fleischer wrote. I hadn’t ever heard of spite-fence torts or the Cal. Civil Code section pertaining to it.

    I don’t like the California statute’s wording in that just maintaining a fence that may have come with the purchase of residential real estate may be a private nuisance if maintaining it is an attempt to annoy the neighbor.

    So, let’s say the neighbor is KCFleming, who wants everything in the neighborhood to be gray and pleasant. If the owner of the ten-foot fence paints it in a paisley pattern intermingled with red, white, and blue peace signs, knowing the neighbor’s stealthy and healthy disregard for everything and anything hippie, it’s a private nuisance? Where does free speech enter into the calculus for matters of private concern?

  9. Talk about spite – We overlook a golf course whose owner attempted to build an over-the-top housing development down the road from us. We fought him, he lost and was so miffed, he planted 50 weeping willows on his property directly in front of our home. We’re actually quite pleased with the trees because of the angle, we’re no longer exposed to rude golfers peeing in the bushes, and the fact that not in our lifetime, or the next, will our view ever be obstructed of the majestic snow-capped 6000 ft mountain in the distance. His spite cost him a lot of money, the ill will of his members because the trees entangle their balls, and will soon result in multiple detrimental effects as they were thoughtlessly planted along a fish-bearing stream (with headwaters in the golf course), that is also an important town resource.

  10. Next door lawyer neighbor sues Dr. Oz:

    For planting three large trees that blocked his view of the Hudson River and Manhattan skyline — and now it’s too late to do anything about it, a state court ruled.

    The Appellate Division upheld a Superior Court judge’s ruling in Hackensack that Angelo R. Bisceglie Jr. should have gone to Cliffside Park’s zoning board in his beef with Mehmet Oz, his wife, Lisa, and local officials.

    Superior Court Judge Menelaos W. Toskos dismissed the complaint, finding that Bisceglie “failed to exhaust administrative remedies.” The matter needed to be heard by either the planning or zoning board, the judge said.

    Admitted to the New Jersey, New York and Pennsylvania bars 25 years ago, Biceglie, a former assistant prosecutor in Morris and Essex counties, specializes in the construction industry and education law, as well as employment and labor law. He has negotiated numerous private and public sector collective bargaining agreements and, by his count, has participated in several hundred labor arbitrations and hearings – representing more than 34,000 union construction workers throughout the U.S.

  11. Jim Clark, the guy who started Netscape, WebMD, and a couple other billion dollar start ups, wanted a fence higher than the 5 ft limit in his neighborhood so he brought in fill and landscaped a four foot rise along his property line and then put the 5 ft fence on that. There are creative ways to get your way.

    On this topic, the offended owner might approach the issue through the fire department. Most side yard setbacks are there for from privacy issues-5+ft – on both sides equals 10 ft, to fire access issues-3+3 ft or 6 feet between buildings. Typically the fire department is independent of the design review department and has a very strong position. Plans do not go forward until they are signed off by the fire marshal. The owner could sue both the city and the architect on the grounds that the narrow space presents an impediment to access in case of a fire. No set back clearance is typically used when a garage is separate from the main structure, in a corner and there is nothing on the other side of the adjacent property. This situation is a clear example of the essence of the law being ignored. Unfortunately once the authority, the city allows something they have to stand by it to save face and not set a precedent for other reversals. Such is the situation with authority. Look at all the lives destroyed concerning smoking pot. Part of the reason it is not legal is because legalizing it would be an admission of the fallibility of authority. Look how hard it is for Clinton to admit mistakes. Trump doesn’t even make an effort, just lies, and lies, and lies…… See, anything can be made political.

    1. “…so he brought in fill and landscaped a four foot rise along his property line and then put the 5 ft fence on that. There are creative ways to get your way.”

      In my jurisdiction the six-foot max fence height restriction is measured up to three feet on either side of the fence.

      That famous liberal Garrison Keillor filed a light-and-air lawsuit against his neighbor:

      http://www.startribune.com/jan-15-keillor-sues-neighbor-to-block-addition/13784766/

      It’s interesting to note that Keillor’s house was much bigger than his neighbor’s, or any other house in the neighborhood for that matter. But Keillor is a member of the clerisy; perhaps his neighbors belonged to the basket of deplorables and as such deserved no property rights.

      1. So Clark builds up four feet over three feet. That is well below the structural requirements-two horizontal for one vertical. His now nine foot fence is on a four foot hight rise over six feet wide. As I understood it he did it in a sensitively landscaped way with trees and bushes on both sides of the fence. Clark got his privacy and gave some to his neighbors as well. It was a win win solution. This architect is crooked and plain ignorant. Firemen have got to have access between buildings. The fire marshal loves to assert his or her authority in most cases. When I worked as an architect there were situations where the fire marshal cost clients millions of dollars in hoops to jump through in response to the arrogance of the client.

    2. I agree that a large part of the problem here is the evident lack of setback requirements. Where I live, 10 foot setback is mandatory on lot sides.

  12. I have a friend who is involved in one of these. Her neighbor is remodeling his house and building as close to the property line as possible (2 feet). My neighbor is planting trees to hide his remodel. So far she has planted 50 spruce trees (it is a big lot).

  13. JT,

    An uninteresting legal case for most of us. I can only speculate you have an iron in the fire.

  14. Hillary’s neighbor complained of her outdoor disgrace. She wrote a poem. Or maybe it’s a song. It is on Cloud 9. It is about Hillary and Putin.

    “Hillary and Putin sittin in a tree.
    F You See Kay Eye N Gee.
    First came love.
    Then came Donald.
    Along came Putin with a way to Holland.

    It’s a stairway to heaven.
    A stairway to Rome.
    Hillary and Putin like to pork at home.”

      1. Its not porn you stupid idiot. If that’s porn to you then I pity how shallow of an existence you must live.

        1. xxxx5 – I think he is follow the SC justice who said “I know it when I see it.” Porn is in the eye of the beholder, that is why they use “community standards” to decide if something is pornographic.

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