Massachusetts boundary line dispute

A recent court ruling confirms a legal principle in Massachusetts which a lot of folks may be surprised to learn. Under the legal theory of adverse possession, if you mow your neighbor’s lawn and otherwise conduct typical suburban lawn care on that property openly and adversely for 20 or more years, you can claim legal ownership of that area. I’m not kidding, this is the law, and this principle comes up more than you think in boundary line disputes in Massachusetts.

Boundary Line Dispute In Newton

The case is Miller v. Abramson (Mass. Appeals Court Aug. 29, 2019) and is a good example of a classic adverse possession lot line dispute.

The Miller family lives in a single-family home at 11 Fellsmere Road in Newton, on a corner lot at the intersection with Ward Street. The Abramson family lives at 211 Ward Street in Newton. Fellsmere Road dead-ends onto Ward Street. As shown on the plan (left), the back of the Millers’ property directly abuts one side line of the Abramsons’ lot. The parties’ shared lot line is straight, running from Ward Street to the back of the Abramsons’ property. The area disputed by the parties forms a thin triangle, about 492 square feet in size, the base of which is along the Abramsons’ back lot line and one side of which is along the parties’ shared lot line. Since the Millers bought their property in 1986, a line of shrubs and small trees have formed a demarcation of the disputed area from the Abramson’s property. Since 1986 to the present, the Millers and their landscaping company mowed the lawn weekly and undertaken typical residential landscaping work within the disputed area.

Lawn Mowing and Typical Suburban Landscaping Can Constitute Adverse Possession

On appeal after the Millers prevailed at a Superior Court jury-waived trial, the Abramson’s argued that lawn mowing and landscaping was not sufficiently intense a use to establish adverse possession. As I have argued in other cases, the three judge panel confirmed that “typical suburban lawn care” can establish adverse possession so long as it was conducted for 20 or more years. The Appeals Court reasoned that “the context supplied by the surrounding landscape is significant in an adverse possession case — a use that is sufficient to establish ownership in a densely populated neighborhood may be inadequate in an isolated, wooded setting.”

So basically what the Appeals Court is saying is that the uses which would qualify for adverse possession depend on the type of property and the typical uses of land for that type of property. Here, in the single family residential setting, typical suburban lawn mowing, tree pruning and landscaping will be sufficient for a landowner to make a valid adverse possession claim. If the property is in a more open, heavily wooded area, more uses may be necessary, such as cutting trees and clearing the land. Conversely, if the property is in a dense urban area, uses such as paving a driveway, installing a fence, or the like may be enough. It depends on the situation, and every case is different.

Take-Away’s — Get a Plot Plan and Owner’s Title Insurance

As a prospective buyer, seller or real estate agent, how can you minimize the risk of adverse possession and boundary line disputes? The gold standard is to have a licensed surveyor undertake an instrument survey and run survey stakes along all lot lines. However, such a survey does cost upwards of $1,000 or more. Most lenders require a mortgage plot plan (around $125) at closing, however, these are not 100% accurate, but they will typically flag a potential encroachment. Owner’s title insurance with enhanced coverage does provide some coverage (subject to a cap) for boundary line disputes, so I always recommend that buyers get this. While buyers often pay the most attention to inside the home with their inspection, it’s a good idea for buyers to walk the property and try to scope out any potential lot line issues.

If you are dealing with a Massachusetts property line or boundary line dispute, please feel free to contact me at [email protected].

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I was honored to talk about boundary line disputes on this week’s Real Estate Radio Boston broadcast on WBZ 1030, hosted by Rick Scherer and Ali Alavi, Esq. The broadcast is below. Just click the Play button to listen! Or click on this link:  Real Estate Radio Boston | Richard Vetstein.

Tune into the broadcast every Saturday night from 8pm-9pm on WBZ 1030 AM. It’s a fantastic show!

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property-line-survey-getty_f11341f289ae931d07403cac3726db78_3x2_jpg_300x200_q85Trial Report: Winiker v. Bell (Middlesex Superior Court CA 09-907)

I was lead trial counsel in a week-long adverse possession/boundary line dispute case back in August in Middlesex Superior Court before Judge Bruce Henry. We had closing arguments last week, and the judge’s decision just came down. I’m thrilled to report that we prevailed! Hard work (lots of it) does indeed pay off…

Judge Henry drafted a 13-page well-reasoned opinion, which I’ve embedded below. By and large, the judge accepted my view of the facts and the law, and cited many of the cases which I referenced in my briefs. The claimants, having been unable to establish adverse possession, were ordered by the judge to remove their driveway and retaining wall which encroaches onto my client’s property.

Some take-aways from the case:

  • Prepare, prepare, prepare. I had a lot more work on my side, with 8 testifying witnesses and a binder full of exhibits. I prepared for a solid two weeks before this trial, and by the trial, I knew every blade of grass and rock on the disputed area. I also had deposition testimony of the claimants which I used to impeach them when they inevitably changed their stories or failed to remember key details. I also had blowups of aerial photos of the property which were very helpful. Lastly, I convinced the trial judge to take a “view” of the property, so he could see the layout of the property himself. My opponent had much more trial experience than me, so I had to overcompensate by knowing the facts and law inside and out.
  • Track down old owners. Since my opponents were claiming adverse possession going back to the 1960’s, the first and most important thing we had to do was to track down all the old owners of my client’s property, and put together an accurate historical timeline of the property. Including my client, there were seven owners of the property! This was the only way my client could mount a defense against the claim. One of the old owners lived in Florida, and he came up to testify about having pig roasts near the disputed area, among other stories. Other former owners testified and a few were not exactly thrilled to be dragged into court.
  • Establish a theory of the case. Going into the trial, I knew that the claimants’ use of the disputed property — lawn mowing, landscaping, storing construction materials and snow plowing — was arguably not strong enough to establish adverse possession. I also knew that they did nothing to prevent the owners of my client’s property from accessing the disputed area. I hammered them continuously on each of the required elements of adverse possession, eventually punching holes in the foundation of their case. I also had to be a bit ruthless. My opponents’ age was in their 70’s, so I had to exploit their memory lapses. An amusing moment was when the husband produced an old photo of his 3 kids, but when questioned, could not remember the names or ages of his own children!

With yet another win under my belt, I have built a solid niche practice area in Massachusetts adverse possession law and boundary line disputes. I really enjoy working on these types of cases as they are factually intensive and usually have a fair share of nasty neighbor drama!

Listen to my recent radio appearance on boundary line disputes and adverse possession! Click play.

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Richard D. Vetstein, Esq. is an experienced Massachusetts adverse possession and boundary line dispute attorney who has tried numerous adverse possession cases in Land Court and Superior Court. Please contact me if you are dealing with a Massachusetts adverse possession dispute.

Samuel Winiker v. Kimberly BellJudgment, Findings of Fact and Rulings of Law

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The old Robert Frost poem Mending Wall goes “Good fences make good neighbors.” But a neighbor can quickly turn from good to bad when a they maliciously construct a “spite fence” on the property line. And that includes Sarah Palin who installed this 14 feet monstrous fence at her Wasilla, Alaska home.

What Is An Illegal Spite Fence?

Spite fences are those which neighbors put up extremely close to the other neighbor’s property for the purpose of annoying or inconveniencing the neighbor, and not for any legitimate other reason. In certain circumstances in Massachusetts, courts can rule that certain types of fences are illegal “spite fences,” and order that they be taken down, decreased in height or award damages to the complaining neighbor.

Under the Massachusetts Spite Fence Law (Gen. Laws ch. 49, § 21) ((Interestingly, Massachusetts was one of the first states to enact a spite fence law in 1887)) a fence is an illegal “spite fence” if:

A fence or other structure in the nature of a fence which unnecessarily exceeds six feet in height and is maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property….

Whether a fence is an illegal spite fence depends on the circumstances. Usually spite fences are erected where neighbors have been fighting or in a legal dispute of some kind, and the fence is installed as a form of revenge or pay-back. In the vast majority of towns and cities, fences are allowed to be up to 6 feet tall. If the fence in question is over 6 feet tall, and there is evidence that it was installed maliciously, it may be an illegal spite fence.

In a recent dispute on Concord Street in Wilmington (see photo right), a neighbor has installed a very ugly make-shift plywood spite fence with a blue tarp attached. This precipitated a proposal to pass a new fence by-law in Wilmington. I’m not sure of the circumstances surrounding this particular fence, but it is certainly borders on a classic spite fence. In another reported case, the Land Court ordered a neighbor to take down a makeshift fence with spray painted signs and no trespass warnings.

Most folks who erect spite fences will claim the fence is for privacy, but if the home faces an entirely different direction, you can debunk that as a cover for maliciousness. Neighbors may also try to get around the Spite Fence Law by installing a row of trees over 6 feet tall behind the fence. These, too, may be considered illegal.

What Can I Do If My Neighbor Puts Up A Spite Fence?

Under the Spite Fence Law cited above, you can sue your neighbor and ask the court to take down the fence and also seek damages. Under this law and upon a showing of “irreparable harm” the court has the power to impose an injunction ordering that the fence be taken down or reduced to 6 feet tall. Alternatively, the court can award damages.

The difficulty with these cases is that you need to prove you neighbor acted “maliciously” in installing the fence. You will need to marshal evidence to prove that, and that’s where an experienced Massachusetts real estate litigation attorney would add tremendous value. These cases are complex and judges will often require evidentiary hearings before imposing an order taking down a fence. It’s not a “do it yourself” type of situation!

If you are struggling with a boundary line issue or a potential “spite fence,” don’t hesitate to contact me at [email protected]. I have successfully litigated quite a lot of these cases.

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate litigation attorney. Mr. Vetstein frequently represents Massachusetts residents in contentious boundary line, fence, and adverse possession cases.

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Part 2 of a two part series. For part 1 on filing the Complaint, Venue and Discovery click here.

Expert Testimony

We left off in our last post at the discovery state of litigation. We covered fact discovery of witnesses, but we didn’t address an important component of most real estate litigation cases: experts.

Expert testimony is required when you need to explain to a judge or jury a technical area of the case which is outside the general knowledge of a “regular” person. Experts in a Massachusetts real estate lawsuit can range from appraisers, construction experts, land surveyors, title attorneys, land use planners, civil and wetlands engineers, traffic planners, and handwriting experts. Needless to say, experts are expensive, charging several hundred dollars per hour on an engagement. But they are vitally important. In Massachusetts state court litigation, parties must disclose before trial an expert’s qualifications and a general summary of what the expert will testify to at trial, including his methodology. For litigators like myself, preparing and cross-examining experts is often quite an intellectual challenge and one of the “fun” parts of a trial.

Dispositive Motions

Often in real estate litigation, the case can be decided by way of a “dispositive motion” by the judge prior to trial. In this procedure, called a motion to dismiss or summary judgment, the important facts of the case are undisputed, and the judge can decide the case based on the law. The lawyers will prepare detailed motions, affidavits, and legal briefs, and there will usually be a lengthy hearing before the judge. This procedure will also avoid the need for a trial, saving litigants a much expense. Judges, however, can take a long time deciding a dispositive motion. Months to even a full year is not unheard of.

Pretrial Conference

If the facts of the case are hotly disputed, the case will be set down for a trial date at the pre-trial conference. At the pre-trial conference, the attorneys meet with the judge to discuss readiness for trial, witness lists, expert testimony, unusual legal or evidentiary issues, and the status of settlement talks, if any.

Obtaining a firm trial day these days is pretty much a moving target. It really depends on the county. Middlesex Superior is pretty good at giving firm trial dates, while Norfolk County is not, in my experience.  The Land Court gives out firm trial dates, but has no juries. Prepare to wait several months after the pre-trial conference to get a trial date, which will probably be rescheduled at least once. Massachusetts courts have been beset with budget cuts which has negatively impacted the speed of the courts’ docket. Justice moves slowly in the Commonwealth.

Settlement/Mediation

Given the huge costs and delays of litigation, this is a good place to talk about settlement and mediation. I always explore settlement possibilities of a case early on. If a case can be settled early, both litigants can avoid significant legal expenses and can usually craft a better resolution than a judge or jury can. But clients often come to me very upset and emotional about the situation, so talking settlement may be perceived as “caving in” to the other side. It is not, and clients usually see the light once they get a bill or two from my office.

Mediation is a non-binding settlement process where a neutral mediator (usually a retired judge or experienced attorney) will mediate the dispute between the parties in a structured manner. Both sides get to tell their sides of the story, then the mediator will usually separate the parties into different rooms, shuttling back and forth attempting to broker the peace. There is a cathartic and healing process that often occurs during mediation where parties have a chance to express their anger, resentment, and feelings which can greatly assist the settlement process. Also, the settlement itself often can be much more flexible and creative than what a judge or jury can render after a trial. If mediation does not work out, the case goes back on the trial list. There is no obligation to settle.

Trial

Less than 1% of all civil cases in Massachusetts get to the end of a trial. If your case is in this 1%, prepare yourself for an experience. Jury trials are not for the faint of heart. They are incredibly labor intensive, with the attorneys spending hours upon hours preparing for trial, and burning the midnight oil during the trial itself. The more lawyer time required, the higher the legal bill.

If you are selecting a Massachusetts litigation or trial attorney, ask him or her how many civil jury trials they have done. I’m not talking about former district attorneys who have done a bunch of criminal trials. Complex, civil trials are a totally different animal and call for a lawyer who has done a significant amount of civil trial work. Be wary of any lawyer who claims to have won every trial he has done. There is a saying that a trial lawyer who has never lost a case hasn’t tried many in the first place. Don’t be afraid of small law firm attorneys. In my experience, they are much better trying cases than big firm lawyers who spent the greater part of their careers doing document review and depositions.

Appeals

In the American judicial system, litigants can pretty much appeal anything with impunity. Filing an appeal will usually stop a final judgment from issuing, but in some cases the winning party can ask the losing party to post a bond.

Appeals requires a special skill set, great research, and writing by an experienced Massachusetts appellate attorney. The appeals process can take at least a year or even more to complete. The trial record must be assembled by the trial court. If there was a trial, transcripts need to be ordered from the court reporters or digital tapes and then transcribed. This can take quite a bit of time. Then, the attorneys file lengthy appellate briefs, after which the case is scheduled for oral argument before a panel of appellate justices. After oral argument is held, the court will issue its written opinion, which will either uphold the lower court’s decision, reverse it, or remand it back for a new trial or other action. Appellate opinions are released to the general public and become what is known as the common law of Massachusetts, to be cited as precedent in other cases.

Well, that’s it for now. Remember, litigation should be a last resort, once all attempts at an amicable, reasonable resolution fail.

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Richard D. Vetstein, Esq. is an experienced Massachusetts Real Estate Litigation Attorney who has litigated hundreds of cases in the Massachusetts Land and Superior Courts. For further information you can contact him at [email protected].

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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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