By Keith Turner and Justin Escano

Fence, Tree, and Hedge Height Law

1. Is property subject to CCRs or other recorded property specific restrictions?
2. Local zoning – Los Angeles Municipal Code provisions
3. Spite fence law

1. ---

   Is property subject to CCRs or other recorded property specific restrictions?

 Obtain title report.  Many properties, particularly in tracts north of Sunset, are subject to recorded CC&Rs (conditions, covenants, and restrictions), DORs (declarations of restriction) or similar recorded restrictions which limit heights of fences, trees, etc.  For instance, some of the Marquez Knolls CC&Rs limits boundary fences and walls to a height of three feet.   (Tract 2622, ¶14)

2. Local zoning, Los Angeles Municipal Code provisions

The Los Angeles Municipal Code defines the terms “fence” and “wall” to include: latticework, ornamental fences, screen walls, hedges or thick growths of shrubs or trees.

First, determine the property’s zoning: ZIMAS

• Zoning
• Hillside Area (Zoning Code)
• Other

Second, the basic rules from Los Angeles Municipal Code §12 22.C.20.(f) (check the Ordinance for updates/changes) :

• FRONT YARD FENCES: in most residential areas, fences, hedges, trees are limited to 3.5′ in height in the front yard.
• SIDE YARDS, REAR YARDS AND OTHER SPACES: 6′ or 8′ depending on property’s zoning. For example:
  • 8 ft. maximum height – R zoned property, if lot width is 40 ft. or greater and not in hillside area.
  • 6 ft. maximum height – R zone if lot width is less 40 ft
  • 6 ft. maximum height – R zone, hillside area.

See LAMC §12.22.C.20.(f)(3) for full text of law and height limits in other property zones (which is below).

Third, how measured:

• The Ordinance states: “Fence and wall height shall be measured from the natural ground level adjacent thereto.”
• BUT see LADBS, INFORMATION BULLETIN / PUBLIC – ZONING CODE

3. Spite Fence Law

What is a spite fence?

California spite fence law starts with Civil Code section 841.4. It states, “any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance.” The statute is not limited to traditional fences. In Wilson v. Handley (2002) 97 Cal.App.3d 1301, the Court of Appeals held that trees and hedges planted in a row to form a barrier may be deemed a spite fence. The court agreed in Vanderpol v. Star (2011) 194 Cal.App.4th 385, finding that at row of pine trees planted along a neighbor’s boundary line could be considered a spite fence for the purposes of the statute.

The court in Wilson v. Handley expanded the definition of a “structure in the nature of a fence.” Defendants argued that a row of trees was a not a “structure”, and thus could not come under Section 841.4. The court, however, defined a fence as  a “structure … erected … to separate two contiguous estates,” and “a barrier intended … to mark a boundary.” Ultimately, the court concluded that, in light of the purpose of the spite fence statute, the term “fence” should be liberally construed. By this reasoning, other non-traditional fence-like structures may come under the California spite fence statute.

The Los Angeles Municipal Code has its own spite fence statute. LAMC Section 41.30 states, “”No person shall maliciously construct, erect, build, plant, cultivate or maintain any fence or wall or any hedge or similar growth unnecessarily exceeding six (6) feet in height, for the purpose of annoying the owners or occupants of adjoining property.”

How do you prove it?

Both the California and Los Angeles spite fence statutes require a showing that the fence was “maliciously” constructed or maintained. Courts generally use the “dominant purpose” test to determine malice. Under that test, if the dominant purpose in constructing or maintaining the fence was to annoy a neighbor, then malice may be found. However, if there is another dominant purpose for the fence, such as to maintain the aesthetic qualities of one’s property or to protect one’s own privacy, then there is no malice. Since every dispute is different, the question of malice must be answered on a case-by-case basis.

The California spite fence statute also requires a showing of damages. In Vanderpol v. Starr, the jury originally awarded damages for the reduction of property value caused by a neighbor’s spite fence. On appeal, however, the court says this loss of property value was the wrong measure of damages.  Instead, the California spite fence statue requires injury to the “comfort or enjoyment” of one’s property. The court likened the spite fence statute to other nuisance statutes, which similarly require that the complaining party was “injuriously affected” or have his or her “personal enjoyment [] lessened by a nuisance.”

How do you enforce it?

The California spite fence statute includes a right of enforcement for private citizens. It states that any person may enforce the statute by filing a civil action, pursuant to Civil Code section 3501.

Unlike the California statute, the LAMC spite fence statute does not explicitly include a right of enforcement by private citizens. However, under California Government Code section 36900, a private citizen may still be able to sue for violations of the LAMC.

Section 36900 states that violation of a city ordinance may, “be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action” (Emphasis added). In Riley v. Hilton Hotels Corp. (2002) 100 Cal.App.4th 599, 607, the court held that Section 36900 allowed a private individual to sue for an alleged violation of the Beverly Hills Municipal Code. Thus, a homeowner may still be able to sue for violation of the spite fence statute in the Los Angeles Municipal Code, or other local codes and ordinances.