My Neighbor Built a Spite Fence in Nebraska: What Can I Do?

Understanding Spite Fences in Nebraska: Your Rights and Remedies

Navigating neighbor disputes can be incredibly frustrating, especially when property lines and personal peace are at stake. One particularly irksome issue that can arise is the "spite fence" – a structure built by a neighbor with the sole intent to annoy or harm, rather than serve a legitimate purpose. If you're a Nebraskan homeowner facing such a situation, rest assured, you have legal avenues to explore. This article will delve into what constitutes a spite fence under Nebraska law, what evidence you'll need, and how you can seek a resolution.

What Exactly is a Spite Fence in Nebraska?

In simple terms, a spite fence isn't just any fence your neighbor builds that you find unsightly. For a fence to be legally considered a "spite fence" in Nebraska, it must meet specific criteria outlined in state law. The key is the intent behind its construction and its lack of legitimate purpose.

Nebraska Revised Statute § 34-101 is the cornerstone of spite fence law in our state. It states, "Any fence or other structure in the nature of a fence, unnecessarily exceeding six and one-half feet in height, erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance." This statute is crucial because it gives homeowners a legal framework to challenge structures that are purely malicious.

Let's break down the critical elements:

• 🌳 Unnecessarily Exceeding Six and One-Half Feet in Height: This isn't an absolute cutoff, but it's a strong indicator. While a standard privacy fence is often 6 feet, anything significantly above that without a clear functional reason (like enclosing a very tall structure, blocking an unusual hazard, or providing security for specific commercial purposes) immediately raises suspicion. The "unnecessarily" part implies that even if there's some minor benefit, if the primary intent is malice and the height far exceeds what's needed for any legitimate purpose, it still qualifies.
• 😡 Erected or Maintained for the Purpose of Annoying: This is the most critical and often the most challenging element to prove: malicious intent. It's not enough that the fence happens to annoy you; it must have been built with the specific intention to annoy or harm your enjoyment of your property. This intent is usually inferred from the circumstances surrounding the fence's construction and any prior interactions between neighbors.
• 🏠 Deemed a Private Nuisance: If these conditions are met, the fence is legally considered a "private nuisance," giving you the right to seek its removal or modification through the courts.

It's important to differentiate a spite fence from a fence built for legitimate purposes, even if you find it unappealing:

• 🐕 Enclosing a yard for pets or children.
• 🏡 Providing reasonable privacy.
• 🚧 Marking property boundaries.
• 🔊 Reducing noise from a busy street.
• 🛡️ Enhancing security.
• 🌱 Screening an undesirable view (if done with reasonable height and no malicious intent).

Even if a legitimate fence is unsightly or blocks a view, it generally won't be deemed a spite fence unless the malicious intent and excessive height are clearly present and it serves no other practical purpose.

Proving Your Case: Gathering Essential Evidence

Successfully challenging a spite fence requires more than just feeling annoyed. You'll need compelling evidence to demonstrate your neighbor's malicious intent and the fence's lack of legitimate purpose. This is where meticulous documentation becomes your most powerful tool. The more concrete evidence you have, the stronger your legal position.

1. 📸 Photographs and Videos:
   • 📅 Take numerous photos and videos of the fence from various angles, clearly showing its height, construction, and placement.
   • 📏 Include objects in the photos that provide scale (e.g., a person standing next to it, a measuring tape).
   • ⏰ Ensure photos are date-stamped, or keep a detailed log of when they were taken.
   • 🏡 Capture how the fence impacts your property – e.g., blocking sunlight from your garden, obstructing a significant view, creating an oppressive barrier, or appearing out of place with no functional use.
   • 💡 Document the specific sections of the fence that are unnecessarily high or appear designed for annoyance.
2. 📏 Measurements:
   • 📐 Accurately measure the height of the fence at multiple points along its length. Note the materials used, as solid, opaque materials often contribute more to the "annoyance" factor than open designs.
   • 🗺️ If possible, document its exact location relative to the property line. A professional survey might be necessary if there's a dispute over the boundary, as a fence built entirely on your neighbor's property is still subject to spite fence laws if it meets the criteria.
3. 📧 Correspondence and Communication Records:
   • ✉️ Keep copies of any written communication with your neighbor regarding the fence or prior disputes (emails, texts, certified letters).
   • 📝 Note down dates and details of any verbal conversations, especially if the neighbor admitted their intent (e.g., "I built this so you can't see into my yard anymore" after a privacy dispute, even if it exceeds reasonable privacy needs) or expressed animosity directly related to the fence.
   • ⚖️ If you sent a formal demand letter, keep a copy with proof of delivery.
4. 🗣️ Witness Statements:
   • 🤝 If other neighbors, friends, or family members have observed your neighbor's actions, heard them express malicious intent, or can corroborate the fence's impact on your property, ask if they are willing to provide a written statement or testify. Their objective observations can strengthen your case.
5. 🗓️ Timeline of Events:
   • 📝 Create a detailed chronological record of all interactions, incidents, and the construction of the fence. This helps establish a pattern of behavior and demonstrates the malicious intent. For example, did the fence go up immediately after a heated argument about property lines, or after you made a complaint about their property?
6. 🚫 Lack of Utility:
   • 🧐 Document how the fence serves no practical purpose other than to annoy. Does it block a view that didn't need blocking (e.g., a public park, your own garden)? Does it enclose nothing? Is it placed awkwardly to specifically block light or air to your windows, or to obscure a particular feature of your home?
   • Consider if the fence is significantly different from other fences in the neighborhood in terms of height or design, and if there's no logical reason for the difference.
7. 💰 Evidence of Damages (If Applicable):
   • 📉 If the fence has demonstrably lowered your property value, securing a professional appraisal that identifies this decrease as a direct result of the fence is vital.
   • 💔 Keep records of any significant emotional distress or medical issues directly resulting from the dispute and the fence, though these types of damages are often more challenging to quantify in court.

Initial Steps: Seeking Amicable Resolution (and Why It Matters)

Before jumping into legal action, it's almost always advisable to attempt resolving the dispute amicably. Not only can this save significant time, money, and stress, but courts often look favorably upon parties who have made good-faith efforts to resolve issues outside of litigation. These steps can also strengthen your case by showing your willingness to find a reasonable solution.

1. 🗣️ Direct Communication (with Caution):
   • 🚶 If you feel safe and comfortable, approach your neighbor calmly and politely. Choose a time when neither of you is rushed or stressed.
   • 💬 Explain your concerns clearly and offer potential solutions. Focus on how the fence affects you, rather than accusing them of malicious intent at this stage.
   • 🚫 Avoid accusations, aggressive language, or bringing up past unrelated grievances, which can escalate the conflict unnecessarily.
   • If previous interactions have been hostile, or you fear for your safety, skip this step and proceed directly to mediation or legal counsel. Your safety is paramount.
2. 🤝 Mediation: A Neutral Ground Solution:
   • Mediation involves a neutral third party (a trained mediator) who helps facilitate communication and negotiation between you and your neighbor.
   • 🌐 Mediators don't make decisions or take sides, but guide discussions towards a mutually agreeable solution. They help both parties express their perspectives and explore common ground.
   • Benefits of Mediation:
     • 💰 Cost-Effective: Significantly cheaper than litigation, especially when both parties share the mediator's fees.
     • ⏱️ Time-Saving: Can resolve disputes much faster than court proceedings, often in a single session or a few sessions.
     • 🤝 Relationship Preservation: Helps maintain or repair neighborly relations, which is crucial for long-term peace and avoiding ongoing conflict.
     • 🔒 Confidential: Discussions in mediation are typically confidential and cannot be used against either party in future legal proceedings, encouraging open dialogue.
     • 🛠️ Flexible Solutions: Allows for creative solutions tailored to your specific situation that a court might not be able to order (e.g., modifying the fence, planting trees, etc.).
   • Finding a Mediator in Nebraska:
     • 🏛️ Contact the Nebraska Bar Association for referrals to certified mediators.
     • 🏘️ Many community dispute resolution centers or non-profit organizations throughout Nebraska offer mediation services, often at reduced costs or even for free for community disputes.
     • ⚖️ Some private law firms also offer mediation services.
3. 📜 Formal Notice (Attorney-Drafted Letter):
   • ✉️ If direct communication or mediation fails, or isn't appropriate, having an attorney send a formal letter can be a powerful next step.
   • ⚖️ This letter outlines your legal position, references Nebraska law (including specific statutes like § 34-101), details the harm caused by the fence, and demands specific action (e.g., removal or reduction of the fence by a certain date).
   • This often signals that you are serious about pursuing legal action and can sometimes prompt a neighbor to reconsider their position and seek a resolution to avoid court.

Taking Legal Action: What to Expect in Court

If all attempts at amicable resolution fail, or if the situation is too egregious for mediation, your next step will likely be filing a lawsuit. This is where the legal process truly begins, and having an experienced Nebraska attorney is paramount to navigate the complexities and present your case effectively.

1. 👨‍⚖️ Consulting with an Attorney:
   • 📞 Your attorney will review all your gathered evidence, assess the strength of your case against the elements of Nebraska's spite fence law, and explain the potential outcomes, risks, and costs involved.
   • They will advise you on the best legal strategy, which might involve sending a final, firm demand letter before formally filing suit.
2. 📝 Filing a Petition (Complaint):
   • 🧑‍⚖️ Your attorney will draft and file a formal legal document with the appropriate Nebraska court (often the District Court). This document, known as a petition or complaint, outlines your claims against your neighbor, details the facts supporting your claim that the fence is a spite fence, and specifies the relief you are seeking (e.g., removal of the fence, damages).
3. 📨 Service of Process:
   • 📜 Your neighbor will be formally served with the lawsuit, notifying them of the legal action against them. This is typically done by a sheriff or a private process server to ensure proper legal notification.
4. 🤝 Discovery Phase:
   • 📚 This is a crucial phase where both sides gather and exchange information and evidence relevant to the case. This can involve several tools:
     • ❓ Interrogatories: Written questions sent to the opposing party that must be answered under oath.
     • 🗣️ Depositions: Sworn, out-of-court testimony taken from witnesses (including you, your neighbor, and any other relevant parties or experts).
     • 📄 Requests for Production: Formal demands for documents, photos, videos, or other physical evidence from the opposing party.
     • 🔍 Requests for Admission: Written requests asking the opposing party to admit or deny certain facts, which can streamline the trial if facts are undisputed.
5. 🗣️ Negotiation and Settlement:
   • Throughout the entire legal process, there will always be opportunities for settlement discussions. Your attorney will represent your interests in these negotiations, aiming to reach a mutually acceptable agreement that avoids the need for a full trial. Many cases resolve through settlement before ever reaching a courtroom.
6. ⚖️ Trial:
   • 👨‍⚖️ If a settlement isn't reached, the case will proceed to trial.
   • During the trial, witnesses will testify, evidence will be presented, and legal arguments will be made before a judge (or sometimes a jury, depending on the case type and preference).
   • The judge will then issue a ruling based on the evidence presented and the application of Nebraska law to the facts.

Potential Remedies and Compensations for Spite Fences

If you successfully prove that your neighbor has erected a spite fence, Nebraska law provides for specific remedies. The primary goal is usually to remove the nuisance, but financial compensation can also be awarded for the harm you've suffered.

Nebraska Revised Statute § 34-102 explicitly addresses remedies for spite fences, stating: "Any such fence or other structure is hereby declared a private nuisance, and any person injured thereby may have an action for the abatement of the nuisance and for the recovery of such damages as he or she may have sustained thereby."

1. 🚫 Injunctive Relief (Abatement of Nuisance):
   • This is the most common and often the most desired outcome. The court will issue an injunction, which is a judicial order commanding your neighbor to either:
     • ✂️ Remove the fence entirely.
     • ⬇️ Reduce its height to a permissible level (e.g., 6.5 feet or less), in line with what would be considered non-annoying or legitimate.
     • ♻️ Modify its structure (e.g., changing opaque panels to lattice) to eliminate the nuisance while potentially still serving some privacy or boundary purpose.
   • Example: A neighbor constructs a 10-foot solid wooden fence directly bordering your patio, completely blocking your sunlight and view of the neighborhood park. A court might order the neighbor to reduce the fence height to 6 feet, allowing light and some view to return, thereby abating the nuisance.
2. 💸 Damages (Financial Compensation):
   • Beyond abatement, you may be able to recover financial damages for the harm you've suffered. These damages aim to put you back in the financial position you would have been in had the nuisance not occurred.
   • Types of Damages You Might Recover:
     • 💰 Diminished Property Value: If the spite fence has demonstrably decreased the market value of your property, you can seek compensation for this loss. This usually requires expert testimony from a qualified real estate appraiser who can provide a professional opinion on the extent of the damage.
       • Example with Dollar Amount: A spite fence, 8 feet tall and solid, blocks the expansive lake view from your property, which was a primary selling point and significantly contributed to its value. A certified appraiser testifies that your property value has decreased by $15,000 due specifically to the obstruction caused by the fence. The court could order the fence removed (injunctive relief) and award you $15,000 in damages for the temporary or permanent loss of value.
     • 😔 Loss of Use and Enjoyment of Property: This refers to the emotional distress, annoyance, inconvenience, or discomfort you experienced due to the nuisance. While harder to quantify with exact figures, courts can award a monetary sum for this, considering the duration and severity of the impact on your ability to enjoy your home.
       • Example with Dollar Amount: The constant visual blight and the feeling of being "boxed in" by an unnecessary 9-foot fence has caused you significant stress, leading to anxiety and making you avoid your backyard entirely for months. While difficult to put an exact price on emotional distress, a court might award a sum ranging from $500 to $5,000 (or more, in very extreme cases) for the loss of enjoyment and emotional distress, depending on the severity and duration of the impact on your quality of life.
     • 💲 Costs Incurred: This can include out-of-pocket expenses directly related to addressing the dispute and the fence, such as:
       • 📜 Survey fees if a boundary dispute was part of the issue or necessary to prove the fence's location (e.g., $1,000 - $2,500).
       • 📊 Appraisal fees for determining property value diminution (e.g., $500 - $1,500).
       • 📸 Costs for professional photography or drone footage to document the fence.
       • ⚖️ In some very limited circumstances, attorney fees might be recoverable, but under the "American Rule" in Nebraska, each party typically pays their own attorney fees unless a specific statute, contract, or finding of frivolous litigation allows for their recovery. Spite fence statutes usually do not explicitly allow for attorney fees, so this is rarely a primary recovery.
     • punitive Punitive Damages: These are rarely awarded in Nebraska civil cases like nuisance unless the neighbor's conduct was incredibly egregious, malicious, willful, or wanton, showing a complete disregard for your rights. It's a very high bar to meet, and their purpose is to punish the wrongdoer and deter similar behavior, not just compensate the victim. They are not typically sought or awarded in standard spite fence cases.

Important Considerations for Nebraska Homeowners

Beyond the specific spite fence statute, there are other factors that might influence your situation or provide alternative avenues for resolution. Always consider these alongside state law.

• 🏛️ Local Zoning Ordinances and Building Codes:
  • Before even considering a spite fence lawsuit, check your local city or county zoning ordinances and building codes. Many municipalities in Nebraska (like Omaha, Lincoln, Bellevue, Grand Island, Kearney, etc.) have specific regulations regarding fence height, materials, setbacks from property lines, and requirements for obtaining permits.
  • A fence that violates a local ordinance might be an easier and quicker fix than a state-level spite fence lawsuit. You could report it to your local planning or code enforcement department, who might issue a violation notice, compelling your neighbor to comply. This is often a more direct and less confrontational approach initially.
  • Example: Your city's ordinance limits residential backyard fences to 6 feet in height without a special permit. Your neighbor's 8-foot fence immediately violates this. Even without proving malicious intent, the city's code enforcement could order the fence to be brought into compliance.
• 🏡 Homeowners' Association (HOA) Covenants:
  • If you live in a planned community or subdivision, your HOA likely has its own set of rules (Covenants, Conditions, and Restrictions, or CC&Rs) regarding fences and exterior structures. These rules can be even stricter than city ordinances.
  • HOAs often have an architectural review process for new fence construction. If your neighbor built a fence without HOA approval or in violation of the CC&Rs, the HOA itself might have the power to levy fines, require modifications, or even order removal. This can be a very effective and often less expensive way to resolve the issue than a lawsuit, as the HOA handles the enforcement.
• ⏳ Statute of Limitations:
  • There are time limits for filing lawsuits. For a nuisance claim in Nebraska, the general statute of limitations is typically four years from when the nuisance began or when you became aware of it. However, because nuisance can be ongoing, a court might only consider damages for the most recent period. Don't delay in seeking legal advice, as waiting too long could jeopardize your claim for certain types of relief or damages.
• ❤️‍🩹 The "High Road" and Emotional Toll:
  • Neighbor disputes, especially those involving legal action, can be emotionally draining, stressful, and time-consuming. While Nebraska law provides recourse, litigation should often be a last resort after other avenues have been exhausted or deemed impractical.
  • Consider the potential impact on your daily life and your long-term relationship with your neighbor, even after a favorable ruling. Sometimes, a compromise or a mediated solution, even if imperfect, is better for long-term peace of mind and can help avoid future conflicts.

Conclusion: Don't Let a Spite Fence Undermine Your Peace

A spite fence is more than just an eyesore; it's a direct assault on your property rights and your peace of mind. Fortunately, Nebraska law, specifically Nebraska Revised Statute § 34-101 and § 34-102, provides a clear pathway for relief. You don't have to passively accept a structure built solely to annoy you.

While the process of proving malicious intent and navigating legal channels can be complex, gathering thorough evidence and seeking professional legal guidance are your strongest assets. Whether through reporting a zoning violation, seeking HOA intervention, engaging in mediation, sending a demand letter, or ultimately pursuing a lawsuit, an experienced Nebraska attorney can help you understand your rights, build a compelling case, and work towards a resolution that restores your property's value and your sense of peace.

Remember, your home is your sanctuary, and Nebraska law offers protection against those who seek to undermine that peace with malicious intent. Take the necessary steps to assert your rights and reclaim your enjoyment of your property.

Disclaimer: This article provides general information about Nebraska law and neighbor disputes and is not intended as legal advice. Laws can change, and every situation is unique. You should consult with a qualified attorney in Nebraska for advice specific to your individual circumstances. No attorney-client relationship is formed by reading this article.