Encroachment of Property in Massachusetts

Encroachment of property occurs when a structure is on someone else’s land. In Massachusetts, the law allows a property owner to take court action to have such a structure removed.

Encroachment of Property: What Can Be Done?

Massachusetts law allows a property owner to file a civil lawsuit for encroachment of property. Per the law, a property owner is generally allowed to compel the removal of a structure significantly encroaching their property. Such an action would generally be pursued in Superior Court or Land Court.

To pursue such a case, a property owner would, of course, have to show they own the respective property that they claim is being encroached. This generally requires the property owner to have a professional survey or plot plan showing the boundary lines and location of the encroaching structure. A property owner may also be able to show property ownership through a successful claim of adverse possession.

Is the Encroachment Trivial?

Not all encroachments, however, will allow a mandatory removal of a structure. A court will not permit such relief when the encroachment is de minimis (“minor”). For example, a prior case found an encroachment to be de minimis for a building located on another’s property by only one-quarter of an inch.

Determining this will come done to the specific facts of each case, and will require a claimant to make a compelling reason why such a removal should be permitted.

Practical Implications

As with all legal matters, it is best to see if such disputes can be resolved without court intervention. Negotiation and compromise can often save all parties enormous time and legal expenses. If you need assistance with such a matter, contact me for a consultation.

Proving Adverse Possession

Proving adverse possession isn’t easy. A recent decision from the Appeals Court (enclosed below) explains some of the many nuances when pursuing such a claim.

Adverse Possession 101

Adverse possession is best described as a property rule requiring land owners to “use it or lose it.” Adverse possession is a legal claim by which a party can acquire someone else’s record property if they continuously use it for twenty years (along with some other requirements).

The person bringing an adverse possession claim has the burden of proving each these elements. A court will look closely at whether such a claimant has made a case for each of these detailed requirements. Since adverse possession will often result in the loss of record property to someone else, few courts will entertain such relief unless a viable case has been established.

Proving Adverse Possession

As the case below shows, proving adverse possession generally comes down to who the judge or jury finds is most believable. Often in these cases, there is “two sides to the story,” and a judge or jury must hear all of the evidence and make a finding of fact.

In the case below, a claimant who lost their adverse possession case appealed this decision and claimed that the judge’s decision was clearly erroneous. This required the claimant to convince the Appeals Court that the judge’s decision lacked a solid basis in fact or law.

Such a showing is hard to make. It is not enough to show that the decision could have “gone the other way.” Rather, proving that a decision is clearly erroneous requires a showing that the decision was not “soundly based in the record and the law.”

In every civil case, someone wins, and someone loses. An appellate court won’t change a decision simply because the claimant thinks the judge or jury should have reached a different decision.

Here, because the judge in this adverse possession case had a basis for his or her decision, the appeal of this decision was not successful.

Practical Implications

This case demonstrates the importance of preparing a strong case for proving adverse possession. Because the outcome of one of these decisions is entirely in the hands of a judge or jury, who has the sole decision in determining which side is credible, it is critical to properly prepare such a case through the assistance of an experienced attorney.

If you need assistance with such a matter, contact me for a consultation.

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Fence Disputes: Five Things Every Massachusetts Property Owner Should Know

I recently settled a case involving a fence dispute between two neighbors who weren’t getting along. Fence disputes, believe it or not, are among the most common types of boundary disputes and most often arise when a property owner seeks to erect or takedown an existing fence.

This case reminded me of some important advice that every Massachusetts property owner should know about these matters.

Location Matters

It may sound obvious, but it is worth mentioning: a property owner can only erect a fence on their property. Placing a fence on your neighbor’s property can quickly lead to a fence dispute and, in the worst case scenario, a court order mandating the immediate removal of the fence.

To avoid this, ensure that your fence is on your property. A plot plan or survey can help determine your boundary lines.

Fences Can Lead to Adverse Possession Claims

A claim of adverse possession occurs when a person uses the property that is not theirs for an uninterrupted period of twenty years without the record title owner’s permission. Adverse possession follows the rule of “use it or lose it.” If someone else uses your property, you can run the risk of it eventually belonging to someone else.

One of the requirements for adverse possession is exclusive use: showing that the property was within the other party’s exclusive use and control. Massachusetts courts have held that the placement of a fence is a strong example of an adverse possession claim because it puts the property owner on notice that someone else is using their property. For example, if a homeowner erects a fence that encroaches several feet of their neighbor’s yard and makes use of this property as their own for twenty years, a claim of adverse possession may arise.

For this reason, property owners need to be aware of potential adverse possession claims when erecting fences.

Exercise Care When Removing Trees

The building or taking down a fence often involves the removal of trees and other vegetation. If this applies to you, proceed with caution. Massachusetts law imposes steep penalties for willfully cutting down someone else’s trees:

A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.

Boundary Disputes Can Become Contentious Quickly

Even the smallest boundary dispute can become a source of friction between landowners when it comes to land. This is an important factor to keep in mind when dealing with a fence dispute. An overly aggressive approach to one of these matters can inflame tempers and lead to unnecessary legal expenses and time in court. For this reason, always try to find an amicable resolution to one of these matters first.

Consult An Attorney If All Else Fails

Of course, some fence disputes (like any other legal matter) can not always be resolved on their own. If you find yourself in such a scenario, strongly consider speaking to an experienced real estate litigation attorney.