Fencing Off Your Neighbors Can Be Illegal

When neighborly disputes build into malicious fences in Indiana

You can choose where you live, but you can’t choose your neighbors. And, unfortunately for some, the personalities and habits of those living next door can be less than optimal. In some cases, the divide between people builds until one decides to build a fence. Which is fine: Fences are perfectly legal—to a point.

The law for “spite fences”

Indiana has a specific statute for spite fences, which gives property owners some recourse if the fence is constructed in a malicious way. Fences under the statute cannot unnecessarily be taller than six feet, or be built or maintained in a way that purposefully annoys one’s neighbors. If a fence is created or maintained in this way, it can be considered a nuisance. If a nuisance is proven, neighbors can collect damages, abatement and any other remedies that will prevent this nuisance in the future.

In 2003, David and Nichelle Gertz moved in next door to Douglas and Susan Estes in Hebron, Indiana. There was, soon after, a dispute over the property line. Estes made an addition that left debris all over the Gertz’s yard, and sometime after that, three outdoor cats wandered onto their property.

The Gertz family had had enough, so they gathered the cats and took them to animal control. They then built a 720-by-8-foot fence with thousands of nails facing the Estes side of the property. They further installed loudspeakers, security lights and security cameras, as well as both “No Climbing” and “No Trespassing” signs.

An Indiana Court ruled that the fence, lights, cameras and speakers were to be taken down without replacement.

What can be done?

The cheapest way to deal with a neighborly dispute is to engage your neighbor in a conversation about your concerns, and to find a solution that works for both parties.

If fences have been built, however, there is a good chance that simply talking to one another will not solve the problem. A more effective resolution may be helped by entering into mediation—a process in which a reputable and experienced mediator can facilitate an active resolution between the parties. This process is collaborative, deeply meaningful and has a high percentage of success. It’s also more cost effective than filing a lawsuit and going to court.

If mediation fails, there is a final step. Courts have the power to subpoena and force uncooperative parties into the same place to resolve their issues. Under the spite fence statute, the fence alone is enough to prove a nuisance and allow a court to intervene.

It is recommended that, in any nuisance case, you document as much of your neighbor’s behavior as possible. That includes keeping photos, videos and written records of unfortunate events—all with dates and documentation. A reputable and experienced attorney can then help you file a lawsuit if your neighbor’s behavior has gotten out of control. For more information on this area, check out our overview of real estate laws.

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