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Chris Jan. 27, 2015

When I finally write my series of erotic legal thrillers for Cinemax, “Malicious Erections” will be one of the titles (“Attorney-Client Privilege” may be the first or the title for the entire series; I have many others). We are not talking about the kind of malicious erection that comes from too much Viagara. From what I’ve seen on TV, if one of those lasts for more than four hours, call a doctor. For the kind that is constructed by a neighbor, call a lawyer. If it is both, then call the protagonist in my thriller series.

A malicious erection is in its simplest terms a “spite fence.” The common law developed heavily around property rights and ownership. Since people have been living on land, they have had neighbors. It didn’t take long for people to stop getting along (much of the Bible consists of people trying to screw their neighbors–why else would Jesus have talked about “loving thy neighbor” if it weren’t so much of a problem?). Many laws concern invading and taking property: trespass, larceny, burglary, trespass to chattel, conversion, trover (who could ever forget that) and all sorts of things that we learned in Property classes our first year of law school and then had to re-learn while studying for the bar. But what about when a person doesn’t invade another’s property but instead builds something on his or her own property with the intent to injure the property of another?

Spite fences are fences or walls that are intended to harass another property owner or damage the value of the property. They are higher and more obstructive than structures which have legitimate purposes such as establishing boundaries, keeping dogs in or out or playing sporting events. They can be unsightly, block light or views or cause other annoyances. I know of one case in Connecticut wherein the fence-builder wrote “Keep Out” in 20 different languages as well as other messages in retaliation for his neighbor complaining to the police about him making noise.

The most famous spite fence in the United Staes was probably Charles Crocker’s spite fence in San Francisco in the late 1800s. Annoyed that a person was demanding a high price for his lot, Mr. Crocker build a fence that nearly surrounded that house and property (he owned the surrounding land), making the property nearly worthless.

Some sporting venues constructed high fences to prevent people from watching games for free. These probably wouldn’t be considered spite fences, or at least not be actionable, because the intent was to protect their business interests. Nevertheless, Shibe Park’s (home of the Philadelphia A’s before they moved to Kansas City and thereafter Oakland) right field wall was popularly known as a spite fence.

So what can you do legally if your neighbor or a supervillain constructs something with the intent to harm you or your property? Call a lawyer (preferably me) as soon as one pops up. Connecticut has two statutes (it is possible that a statue can fall under the statute) that deal with malicious erections. One allows for an injunction that would require the structure to be removed. The other is a civil action for damages.

The injunction statute, Conn. Gen. Stat. sec. 52-480, provides

Sec. 52-480. Injunction against malicious erection of structure. An injunction may be granted against the malicious erection, by or with the consent of an owner, lessee or person entitled to the possession of land, of any structure upon it, intended to annoy and injure any owner or lessee of adjacent land in respect to his use or disposition of the same.

The civil action, codified under Sec. 52-570, provides that

An action may be maintained by the proprietor of any land against the owner or lessee of land adjacent, who maliciously erects any structure thereon, with intent to annoy or injure the plaintiff in his use or disposition of his land.

There may even be other actions available, such as nuisance or even infliction of emotional distress.Damages that can be recovered include losses in the value of or enjoyrment of property, costs of other construction or repairs and possibly punitive damages.