Default Featured image

Do Trees Qualify as a Fence Under the California Spite Fence Statute?

Neighbor & Nuisance Disputes by Simon Offord, Esq.

The California Legislature has carved out specific rules to deal with an issue that commonly causes disputes among neighbors: spite fences.   A “spite fence” is the generic term for any structure that harms a homeowner when that harm is the purpose behind a neighbor’s conduct.

Typically, the spite fence law deals with exactly that, fences.  However, a recent California case has demonstrated that the spite fence law can extend beyond what is traditionally considered a fence.  The cases involving spite fences demonstrate the pressures and animosities which can develop as a result of physical proximity.

The spite fence law provides that any fence or other structure in the nature of a fence, unnecessarily exceeding ten feet in height, maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property, is a private nuisance.  When a private nuisance exists, the neighbor may, if injured either in the comfort or the enjoyment of his or her property, abate by removing or destroying the nuisance, or have it abated in a civil action as prescribed by law.

Trees as a Spite Fence

The recently decided case of Vanderpol v. Starr provides further clarification on whether a row of trees is a “structure in the nature of a fence” under Civil Code Section 841.4.  In Vanderpol,  plaintiffs purchased a home with an ocean view.  The neighboring property had a row of eucalyptus trees  dividing the properties, however the trees did not block plaintiffs’ view.   Before plaintiffs purchased, the seller  informed plaintiffs he and the neighbors had an arrangement to keep the trees trimmed to heights that would not block the view.
Over the next several years, plaintiffs arranged for the trees to be trimmed on multiple occasions at their expense.  Eventually, the relationship between plaintiffs and the neighbors soured.  In turn, the neighbors planted up to 85 additional trees along the property line, and allowed the eucalyptus trees to grow up four or five times the height from when plaintiffs moved in.  Plaintiffs then filed suit, seeking damages for their loss in property value and an injunction, among other things.

Plaintiffs prevailed at trial and were awarded $57,000 for their loss in property value.  The judgment enjoined the neighbors from maintaining their trees at a height in excess of fifteen feet, nine inches.  The neighbors appealed, in part arguing that the row of trees was not a “structure in the nature of a fence.”

In determining whether a row of trees constitutes a spite fence under Civil Code Section 841.4, the Court looked to the Third District Court of Appeal’s decision in Wilson v. Handley (2002) 97 Cal.App.4th 1301, 1309.  In making its ruling, the Wilson Court reviewed the history and purpose of spite fence statutes in the United States, and adopted a plain and common sense meaning of the term “structure” in section 841.4, defining the word as “something arranged in a definite pattern of organization.”  Thus, the Court had little difficulty considering a tree a “structure.”

The Wilson Court next addressed whether a row of trees could constitute a structure “in the nature of a fence.”  The Court noted the definition of fence included a “structure erected to separate two contiguous estates” or a “barrier intended to mark a boundary.”   As a result, the Court concluded a row of trees planted or maintained near a boundary line could be construed as a “structure in the nature of a fence” for purposed of section 841.4.

The Court in Vanderpol agreed with the Wilson Court’s reasoning, explaining that if they were to rule otherwise, they would potentially be creating an exception to the statute that could swallow the rule.  Despite their holding, the Court ordered a new trial due to a defect in the special verdict, namely that the jury was not required to find whether plaintiffs were injured in their comfort or enjoyment of their property.


The ruling in Vanderpol confirms the decision that a row of trees will be characterized as a fence for the purposes of section 841.4.  Therefore, if you or your neighbor have planted a row of trees with the intent to annoy the neighboring homeowner, the conduct can be abatable and actionable for damages.  If you are involved in a dispute over a boundary line, or if you have any other questions about real estate legal issues, contact the Law Offices of Peter Brewer at (650) 327-2900, or on the web at

Latest Posts

Real Estate Contracts & Transactions

Out of Contract? Not So Fast…

by Adam Pedersen, Esq. on August 28, 2018

In the highly-competitive real estate market in California, agents are being more aggressive in enforcing contract terms. So before you tell your client that you are “out of contract”, you might want to be sure the contract is actually cancelled! [Read More]

Landlord & Tenant Law

What a Three-Day Notice to Pay Rent or Quit Really Means

by Brewer Firm Team on September 20, 2018

It is after Labor Day weekend and that means school supplies, summer vacation credit card bills, and preparing for the holidays. With all these added costs, the tenant may not have enough money to pay rent and the landlord serves [Read More]

Real Estate Contracts & Transactions

Can A Buyer Back Out of a Non-Contingent Offer?

by Simon Offord, Esq. on October 2, 2018

In my last article, we discussed liquidated damages in the context of a residential real estate purchase contract.  This article will examine whether a buyer may have a right to back out of a contract and receive their full deposit [Read More]