NEIGHBORS AND FENCES

The old saying notwithstanding, fences and neighbor disputes are common problems that can arise when owning a home....and being stuck at home during this health crisis.

RPAPL 843 grants an owner or occupant of a structure a cause of action when he or she is deprived of light or air due to the construction of an adjoining property owner's "spite fence" (or "spite wall"). Such a fence, however, must exceed 10 feet in height, and must have been erected in bad faith. That is, a fence that is 10 feet high or less, or that was erected in good faith for the improvement of one's own property, is lawful and not to be deemed a nuisance (see RPAPL 843; 122 E. 40th St. Corp. v Dranyam Realty Corp., 226 App Div 78, 80 [1929]; Great Atl. &Pac. Tea Co. v New York World's Fair 1964-1965 Corp., 42 Misc 2d 855, 860 [1964]; D'Inzillo v Basile, 180 Misc 237 [1943]).

The most famous "spite fence" was built by Charles Crocker, a railroad investor and owner of a house on Nob Hill in San Francisco, who built a 40 foot high fence around his neighbor's house, spoiling his view, after the neighbor held out for many times the market value of the property. Google it.

Not all disputes on fences are about height. So while researching this issue, I came across this case: Seltzer v. Bayer, 272 AD 2d 263 - NY: Appellate Div., 1st Dept. 2000, a dispute between two adjoining property owners on East 69th Street in Manhattan where plaintiff complains that defendant trespassed on his property by erecting a fence and attaching it to plaintiff's fence. But the allegations also involve "that defendant dumped a pile of cement on the sidewalk in front of his house, tossed lighted cigarettes into his backyard, threw eggs on his front steps, and threatened once to paint a swastika on his house." According to E Courts, this case, started in 1997, was settled in 2001.