Spite Structures in Washington: The Statute That Can Order a Fence Torn Down

What does the statute say?

All of it, because it is two sentences:

An injunction may be granted to restrain the malicious erection, by any owner or lessee of land, of any structure intended to spite, injure or annoy an adjoining proprietor. And where any owner or lessee of land has maliciously erected such a structure with such intent, a mandatory injunction will lie to compel its abatement and removal. RCW 7.40.030.

Two remedies sit in those sentences. Before it goes up, an injunction to restrain the building. After it goes up, a mandatory injunction to compel abatement and removal. The second one is the reason to care: a Washington court can order an existing structure taken down.

Is this new law?

No, and anyone describing it as novel is half right for the wrong reason. The section notes run back to 1883 and Code 1881. What is unusual is not that the statute is new, it is that Washington has one at all, and that it is so rarely used that the remedy is easy to miss.

The case law is correspondingly thin. Its leading constructions span 115 years, from 1900 to 2015.

What counts as a structure?

A fence does. The Washington Supreme Court held in 1900 that a fence is a structure within the meaning of the statute, and upheld the statute as a valid exercise of the state's police power. Karasek v. Peier, 22 Wash. 419, 61 P. 33 (1900).

So can a tree, which is where this gets interesting. In 2015 the Court of Appeals held that because a large planted tree may, in some circumstances, be a spite structure prohibited by RCW 7.40.030, dismissal of the statutory claim was reversed. A single tree artificially located and planted with spiteful intent may, depending on the circumstances, be a structure under the statute. MJD Props., LLC v. Haley, 189 Wn. App. 963, 358 P.3d 476 (2015).

Note the limit in that holding. MJD turned on the affirmative act of artificially locating and planting the tree, evaluated at the time of planting. It is not authority that anything which grows and blocks a view is a structure.

What are the elements?

Washington applies a three part test, taken from Baillargeon v. A. G. Press, 11 Wn. App. 59, 521 P.2d 746 (1974) and applied in MJD:

First, that the structure damages the adjoining landowner's enjoyment of his property in some significant degree.

Second, that the structure is designed as the result of malice or spitefulness primarily or solely to injure and annoy the adjoining landowner.

Third, that the structure serves no really useful or reasonable purpose.

All three. They are conjunctive, and the third one is where these claims usually end.

How much malice is enough?

Malevolence has to be the dominating motive. Karasek said so in 1900 and nothing since has softened it. Irritation is not enough, and neither is a neighbor who is simply inconsiderate.

There is a useful way of putting the question that Washington borrowed from a Connecticut case: the structure must strike an ordinary beholder as manifestly erected with a leading purpose to annoy the adjoining owner or occupant in the use of his premises. MJD Props., quoting Karasek and quoting Gallagher v. Dodge, 48 Conn. 387 (1880).

That is an objective test about appearances, which helps. You do not have to prove what your neighbor was thinking if the thing he built announces it.

The element that defeats most of these claims

A structure that serves a genuine purpose is very hard to reach, because element three asks that it serve no really useful or reasonable purpose, and that element is independent. A fence that actually keeps a dog in, a shed that actually stores equipment, a hedge that actually screens a road: each of those has facial utility, and facial utility is a defense.

There is a framing that pushes back on it. The test is whether malice was the dominating motive, and the inquiry in MJD was directed at the time of erection, judged by an ordinary beholder. That supports an argument about siting: not whether the structure has any conceivable use, but what the leading purpose was when it went up where it went up.

Being straight about it, though, Washington law does not clearly hold that a genuinely useful structure can still be a spite structure on hostile siting alone. MJD sent its case back for trial on all three elements. It did not hold utility immaterial. If your neighbor's structure does something real, this is the element that will decide your case, and it is the reason the claim is usually pleaded alongside others rather than by itself.

What else gets pleaded with it?

Nuisance, most often. Washington's actionable nuisance statute reaches whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property. RCW 7.48.010.

Standing is broad. The action may be brought by any person whose property is, or whose patrons or employees are, injuriously affected, or whose personal enjoyment is lessened by the nuisance. RCW 7.48.020.

The nuisance remedy is also substantial. On judgment for the plaintiff a motion for a warrant to the sheriff to abate the nuisance, and to deter or prevent its resumption, shall be allowed unless the nuisance has ceased or that remedy would be inadequate; where it would be inadequate the plaintiff may have the defendant enjoined instead. RCW 7.48.020.

The practical point is that nuisance does not require proving the structure is useless. It asks about the interference. So the two claims fail in different places, which is why they belong together.

What happens if he ignores the order?

The injunction has teeth. Where it appears to the court that a person has willfully disobeyed a restraining order or an injunction after notice of it, the court shall award an attachment for contempt against the party charged, or an order to show cause why it should not issue. RCW 7.40.150.

Does the statute get me money?

Not on its own terms. RCW 7.40.030 speaks in injunctions: restrain the erection, or compel abatement and removal. It does not create a damages remedy.

The nuisance statute does. An actionable nuisance is the subject of an action for damages and other and further relief. RCW 7.48.010. That is another reason the two claims travel together: one of them takes the structure down and the other one can pay for what it cost you while it stood.

If I sue him, can he file an anti-SLAPP motion against me?

It is a fair worry, because Washington's anti-SLAPP statute shifts fees against a losing claimant and a neighbor dispute can involve a lot of speech. Chapter 4.105 RCW, the Uniform Public Expression Protection Act, is the statute he would use.

That chapter carves real property out. It does not apply to a cause of action asserted against a person named in a civil suit brought to establish or declare real property possessory rights, use of real property, recovery of real property, quiet title to real property, or related claims relating to real property. RCW 4.105.010(3)(a)(v).

A suit to make a neighbor remove a structure is a claim about the use of real property, and the exclusion reads broadly enough to reach it, though no Washington decision has yet applied it to one. Worth raising early if the threat comes, and worth reading the chapter itself before relying on it, because the exclusion list is long and the fee exposure in that statute runs both directions.

What a lawyer does here

The first job is an honest read on element three, before anything is filed. What does the structure do, what did it plausibly do on the day it went up, and were there obvious alternative locations. That assessment decides whether this is a real claim or an expensive one.

The second job is evidence of the sequence. These cases are proved with dates and documents: when the dispute started, when the structure appeared, what was said, what the site looked like before. Photographs with dates on them are worth more here than almost anything a witness will say later.

The third job is pleading it with company. The spite structure claim carries the removal remedy, nuisance carries a lower bar on utility, and depending on the facts there may be others. Pleaded together, they do not share a single point of failure.

If a neighbor has built something against you

If a neighbor has put up a fence, a wall, a hedge or a structure that you believe went up to get at you, my office offers a free initial consultation by appointment in downtown Spokane. Bring photographs, the dates if you have them, and anything in writing between you and the neighbor, because the timing and the sequence do most of the work in these cases.

Disclaimer

This article is general information about Washington law, not legal advice, and reading it does not create an attorney-client relationship. Law changes, and how it applies depends on facts specific to your situation. If you have a question about your own circumstances, speak with a lawyer.