Move That Condo! Court Orders Removal Of Encroaching Building

by Rich Vetstein on August 20, 2011 · 4 comments

in Adverse Possession, Massachusetts Real Estate Law

triple113Adverse Possession Bites Condo Developer In The You-Know-What

The case of Brandao v. Docanto (embedded below), handed down by the Appeals Court on August 18, 2011, is a real doozy. The Court ordered a condominium developer to remove his entire building which encroached just 13 inches onto his neighbor’s property. And get this, that strip of land had been acquired by the neighbor through adverse possession (read more here) which is open and continuous use for 20 years. This is a good one in the annuls of Massachusetts property line/boundary line disputes.

Close Knit Neighbors

Mr. Brandao owns the property at 28 Dunmore Street in Roxbury. Mr. DoCanto owns the neighboring corner lot located at 16 Magazine Street. The two parcels were separated by a chain-link fence which was erected by Brandao’s predecessors sometime before 1980. The Brandaos used the entire yard up to the location of the original fence for growing vegetables and fruits, parking and working on their automobiles. They also maintained the area by cutting the grass and weeding. The judge found that the Brandaos used the area, including the strip of land adjacent to the original fence, continuously in a manner typical of any family in an urban setting for approximately 24 years, sufficient time to establish ownership by adverse possession.

DoCanto commenced construction of a two and one-half story two-unit condominium building. Brandao’s fence was deliberately pushed out and then moved, to accommodate the placement of the foundation for the new structure. After the condominiums were built, DoCanto erected a new fence, but placed it in a different location. However, the new fence and condominium structure encroached on the Brandao’s property for a total of 188 square feet. Within this 188 square foot area, the building structure encroaches increasingly for 29 feet along the boundary in a triangular shape for a total of 14 square feet. The maximum width of the building encroachment is 13.2 inches.

Everyday Outdoor Activities Establish Adverse Possession

Brandao was none too happy about the encroachment. He sued and won in the Land Court which found that he had acquired ownership of the dispute land through adverse possession. As I explain in a prior blog post, adverse possession is a legal doctrine under which a landowner can claim another’s property by using it openly, exclusively, continuously and notoriously for 20 or more years.

The appellate court upheld that ruling, and had some notable comments about adverse possession in a densely settled urban area such as Roxbury. An adverse possessor need only use the property “as the average owner would use it.” Growing a vegetable garden, mowing of the lawn and weeds, parking and working on and maneuvering cars, outdoor recreation, playing with children, and so forth was sufficient to establish adverse possession.

Forced Removal

In Massachusetts, a landowner is ordinarily entitled to the removal of a structure significantly encroaching on his land, even though the encroachment was unintentional or negligent and the cost of removal is substantial in comparison to any injury suffered by the encroacher. There is an exception where an order of removal would be, for various reasons, “oppressive and inequitable.” Somewhat surprisingly, the court found that the 13 inch encroachment was “significant.” I think this is debatable given that the value of the encroached area was, by one estimate, $420.

At the end of the day, however, DoCanto’s build-first-ask-question-later actions did him in. The court found that DoCanto’s encroachment was no accident and reckless, finding that “DoCanto and his contractors and other agents paid no attention to the open and obvious fact that the [plaintiffs’] family was using and exclusively occupying the land up to the fence.” The estimates for removal range from $120,000 to $430,000, depending on the method chosen. Well, there goes DoCanto’s profit for his condo!

Take-Aways

There are several take-aways from this case. First, developers need to investigate not only survey results but what activities are present on boundary line areas to determine whether there may be a valid claim for adverse possession. Don’t just assume that a boundary line is set in stone where it appears an encroachment is present. The prudent course is to investigate the encroachment first, before shovels hit the ground. Second, this case may make adverse possession claims easier to establish as it confirmed that normal activities –mowing, weeding, gardening, playing, parking — on land is sufficient to prevail on a claim.

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Richard D. Vetstein, Esq. is an experienced real estate litigation attorney who’s handled numerous adverse possession cases in Land Court and Superior Court. Please contact me if you are dealing with a Massachusetts adverse possession dispute.

Docanto Case

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