Adverse Possession

Typical Suburban Lawn Care Supports Adverse Possession, Appeals Court Holds

by Rich Vetstein on September 4, 2019

in Adverse Possession, Boundaries, Massachusetts Real Estate Law, Title Defects, Title Insurance

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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Tales From The Boundary Line Trenches

by Rich Vetstein on January 31, 2016

in Adverse Possession, Boundaries, Deeds, Massachusetts Real Estate Law, Real Estate Litigation

41 Oakland Street image 3“A picture is worth a thousand words.” – Old Photograph Found In Attic Key to Victory

I handle a fair amount of Massachusetts boundary line and adverse possession disputes. For those who don’t know, adverse possession is a legal doctrine in Massachusetts where one property owner can make a claim of ownership over his neighbor’s land if such use was “open, hostile, adverse, notorious and exclusive” for 20 or more years. These disputes often come up where neighbors don’t know the true location of their property line, and one neighbor puts up a fence, retaining wall or has essentially annexed the land of the other neighbor.

In my most recent case, I am defending a gentleman whose next door neighbor claims adverse possession to an area about 15 feet into my client’s side yard which includes a small portion of the neighbor’s driveway. The dispute arose because my client wanted to put up a 6 foot privacy fence along the lot line. The neighbor sued, asking the court for a preliminary injunction to stop the installation of the fence.

My opponent claimed adverse possession dating back to when he purchased the property in 1985. The first problem I had was that my client bought his property in 2009. Thus, in order to poke holes in the claimed 30 year period, I had to track down the former owners of his property. Luckily, I found them — a charming elderly couple living in Medway. I met them over the weekend and sat down at their kitchen table with the case file and photographs. They said my opponent was a liar and disputed virtually everything he said in his lawsuit.

The elderly man went up to his attic and found several old photographs showing his then young grandchildren playing in the sideyard. That’s the picture in this post. In the background of the photo dating back two decades, you can see a fence in the disputed side yard area. The fence essentially destroyed my opponent’s adverse possession claim because he was physically prevented from using the disputed area, and thus, could not prove 20 years of uninterrupted and adverse use. When I showed the photos to opposing counsel, the response was that his client didn’t remember the fence despite the fact it was there for at least 10 years of his ownership. How convenient!

After working all weekend on the case and armed with the photographs and affidavits from the prior owners, I felt optimistic heading into the injunction hearing before a judge in Norfolk Superior Court. In order to obtain an injunction, the plaintiff is required to show a “likelihood of success on the merits.” The bottom line was that I caught my opponent in a lie, given that he never disclosed the existence of the fence in his original complaint, then came up with the convenient excuse that he didn’t remember it. The judge ruled that the neighbor could not establish adverse possession at this juncture of the case, and denied his motion for an injunction.

As with every adverse possession case, relentless preparation and determination to investigate the history of the property is critical. I was more prepared than my opponent, and that is one of the reasons why I won this round.

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100316_photo_vetstein-2-150x150.pngIf you are dealing with a Massachusetts boundary or property line dispute involving adverse possession, please contact me at [email protected] or 508-620-5253. I’ve handled scores of these cases successfully through trial and appeal.

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Real Estate Radio Boston Appearance On Boundary Line Disputes

by Rich Vetstein on March 2, 2014

in Adverse Possession, Fences, Land Court, Massachusetts Real Estate Law, Real Estate Litigation, Title Insurance

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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Check Before You Cut! Massachusetts Illegal Tree Cutting Carries Substantial Civil Penalties

by Rich Vetstein on January 27, 2013

in Adverse Possession, Boundaries, Environmental Law, Fences, Massachusetts Real Estate Law, Real Estate Litigation, Safety, Trespass

recy3Triple Damage Penalty for Willful Cutting Of Neighbor’s Trees 

Neighbors typically get really mad when you chop down their trees. Really mad….and it can get the guy with the chainsaw into a lot of legal trouble. Can you say “triple damages”?

First enacted in 1698, the Massachusetts illegal tree cutting law (General Laws chapter 242, section 7) provides for up to triple damages for the malicious cutting, trimming, or destroying of another’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.

That said, I always advise property owners who intend to cut trees near boundary lines to consult a survey or plot plan to ensure that the trees are not on their neighbor’s land.

Measure of Damages: Restoration Cost Value

The measure of damages for those harmed by the willful cutting of trees varies from case to case. The most common measure of damages is either the value of the timber cut, restoration cost, or the resulting diminution in value of the property. A claimant is entitled to assert a claim for either value, whichever is highest.

Where the trees cut are tall, hard to replace or have a particular function like screening, or all the above, it is wise to engage a certified arborist to perform a comprehensive restoration cost analysis. The restoration cost analysis takes into account the aesthetics, functionality, age, height, girth, and species of the trees, and formulates a restoration value for the replacement of the removed trees. The method, known as cost-of-cure, involves determining the cost of planting trees and the estimated time for the replacement trees to grow to the size of the destroyed trees (years to parity).

In recent cases, Land Court judges have awarded $30,000 (tripled) for the cutting of 10 mature oak trees and nearly $45,000 (tripled) for the clearing of an 800 square foot woodland area which provided privacy screening. In both of these cases, expert arborist testimony was offered on the restoration cost of the cut trees. And who can forget the case where a Somerset family recovered a $150,000 wrongful death settlement after a women dropped dead after her neighbor wrongfully cut down a swath of sentimental trees.

Branches Over The Property Line

Under Massachusetts common law, you may remove branches of a neighbor’s tree extending over your property line as long as you don’t kill or damage the tree. Also, the neighbor has no liability for roots growing into your yard and causing damage. Massachusetts law does not allow a person to cross or enter a neighbor’s property for these purposes without the neighbor’s consent, nor to remove any branches or other vegetation within the confines of the neighbor’s property. This is the “Massachusetts Rule.”

Utility Tree Cutting

I’ve been reading about many recent disputes between property owners and utility companies (Wayland v. NStar) over tree cutting within utility easements. The law provides a public utility the right to remove or trim your tree if it interferes with the necessary and reasonable operation of the utility. Furthermore, the utility is required to perform tree trimming as part of its program to maintain reliable service for its customers. The National Electric Safety Code requires utilities to trim or remove trees growing near power lines that threaten to disrupt service. Proper and regular tree trimming helps prevent the danger and inconvenience of outages.

Lastly, landscapers and tree cutting companies should get a signed directive from the homeowners and an indemnification prior to cutting trees, as my fellow real estate attorney Chris McHallam points out.

If your trees have been wrongfully removed by a neighbor or if you have mistakenly removed trees, you should consult an experienced Massachusetts property law attorney. Valuation of trees is a science, rather complicated, and best left to the professionals.

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Richard D. VetsteinRichard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney who has handled numerous illegal tree cutting and boundary line disputes. Please contact him at [email protected] or 508.620.5352.

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Three Keys To Winning A Massachusetts Adverse Possession and Boundary Line Dispute Case

by Rich Vetstein on November 13, 2012

in Adverse Possession, Boundaries, Fences, Massachusetts Real Estate Law

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 Anatomy of a Massachusetts Adverse Possession Trial: A View from Counsel’s Table

by Rich Vetstein on August 11, 2012

in Adverse Possession, Boundaries, Deeds, Massachusetts Real Estate Law, Real Estate Litigation

Update: My Clients Prevail (Click Here for Judge’s Ruling)

Effective Preparation and Historical Timeline Key To Trial

I just completed a four day jury waived trial in an adverse possession case in Superior Court. I wanted to share some of my experience as a Massachusetts adverse possession attorney, and what I learned during this case. (For confidentiality reasons, I will not disclose the name of the case or the county in which it was brought). We are waiting for a decision from the judge, which will take several months.

Side Property Line Dispute

The case was a fight over land between two homes in a suburban town.  The dispute arose after my client, “Ms. Jones,” surveyed her property in anticipation of doing an addition project. The survey unfortunately revealed that a portion of the driveway and nearby retaining wall owned by her next door neighbor, “Mr. and Mrs. Smith,” encroached the side lot line. Efforts to resolve the encroachment dispute were unsuccessful, and the Smiths ultimately filed the adverse possession lawsuit, claiming that they had used not only the small encroached area, but a much larger 2,200 square foot area of Ms. Jones’ side yard, for more than 40 years.

Tracking Down Old Owners

Since the Smiths 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 Smith’s claim, since the Smiths owned their property all that time. 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. That’s the nature of the beast.

Proving The Timeline

Next, we had to demonstrate the historical use of the disputed area over four decades. These are very factually intensive cases. The key to every adverse possession case is what and how the parties actually used the disputed area. The parties’ knowledge or lack thereof of the true boundary line is really not the important issue. Generally, the more intense the use and the more the claimant takes action to exclude the other party from using the disputed land, the better the claim for adverse possession. Conversely, the less intense the use, the less successful the claim. Still, adverse possession is a very difficult claim to win as the law does not favor taking someone’s land.

Some important questions in any Massachusetts adverse possession case are:  Did the plaintiff mow the lawn? Did they maintain any landscaping? Did they install a fence or other barrier? Did they demarcate where they used the land? Did they make any permanent improvements to the disputed area? Did they plant anything or install a garden? Did they clear brush? Did they cut down trees or plant new trees? Did the defendant grant permission to use the disputed area. (Permissive use destroys an adverse possession case).

Preparation Is Key

Compared to my opposing counsel, I had a lot more work on my side with triple the number of testifying witnesses and cross examination of the claimants. 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 from Bing Maps which were very helpful. Lastly, I convinced the trial judge to take a “view” of the property, and he did visit the property with counsel the day after the trial was over.

We are filing post-trial briefs at the end of August, and then the judge will make a decision. I’ll let you know how it turns out.

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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.

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Footprints In The Sand: Massachusetts Beach Access Law

by Rich Vetstein on July 20, 2012

in Adverse Possession, Boundaries, Easements, Massachusetts Real Estate Law, Public Accommodation, Trespass

“My life is like a stroll on the beach…as near to the edge as I can go.”

— Henry Thoreau

No Massachusetts summer is complete without some good times spent on the beach, be it on Cape Cod, Ipswich, or Duxbury. But what happens when you are taking a nice stroll on the beach and hit one of those “No Trespassing — Private Beach” signs? Can you continue walking? Can you walk on the water’s edge or wet sand? What about swimming, fishing or boating? Most folks are unaware of Massachusetts’ archaic beach access laws, and I will try my best to explain them in this post.

Origins To Colonial Days:  General Rule, No Public Access To Private Beach Areas

Massachusetts has a unique set of laws giving coastal property owners more extensive private rights to beachfront area than other states. In most coastal states, there is unlimited public access to beachfront areas and you can walk unfettered along the beach. In Massachusetts, however, that is not the case. Here private coastal property owners own the beach area adjacent to their properties down to the mean low tide area, with some limited public access exceptions. This is how the concept of “private” beach areas have been established.

The origin of this law dates back to the Mayflower days. In order to facilitate coastal development, under the Colonial Ordinances of 1641-47, the Massachusetts Bay Colony conveyed most, but not all, rights of ownership to the area between the average or mean high water mark and the low water mark (up to 100 “rods,” or 1,650 feet, from the high water mark) to all private coastal landowners. The land—but not the water—between the two tide marks is known as “private tidelands.” This typically includes all of the wet sand area on beaches.

The general rule is that with some limited exceptions explained below, beach-goers in Massachusetts cannot access any private beach area down to the low tide water mark without the permission of the beachfront property owner.

Limited Public Beach Access Between Low and High Tide Area for “Fishing, Fowling and Navigation”

The Colonial Ordinance reserved three specific and important rights of public use within the private tidelands for “fishing, fowling and navigation.” Those permissible uses have been broadly interpreted by Massachusetts courts to include: (1) the right to fish or to collect shellfish on foot or from a vessel; (2) the right to navigate, including the right to float on a raft, windsurf, or sail; and (3) the right to hunt birds for sport or sustenance, on a boat or on foot. (Though there is no court decision on point, the Attorney General maintains that this right also covers bird-watching.)

Accordingly, the public has access to any so-called “private” beach or any private tideland area as long as you are legitimately engaging in “fishing, fowling, or navigation.”

These antiquated Massachusetts beach access laws have created many disputes between public beach-goers and wealthy coastal property owners who have attempted to enforce a “private beach” regime. Under the Colonial Ordinance, no private property owner may deny access to someone who is fishing or hunting for birds or even surfing or launching a kayak. Indeed, knowledgeable beach-goers are often seen walking with beach with fishing rods in hand or shellfish equipment, so as to claim access rights under the Colonial Ordinance.

What About Swimming?

Swimming rights are a bit confusing. According to the courts, swimming in the intertidal zone is included within the reserved public right of navigation, but only so long as your feet don’t touch the bottom! And you don’t have a right to walk along the wet sand area solely for the purpose of gaining access for swimming. So basically you have the right to swim into a private beach area provided you continue to swim and don’t stand or walk into the private tidelands zone. So try not to drown..

Can I Walk Below the Low Tide Line?

Yes, private property owners cannot interfere with the public’s right to walk along the submerged lands that lie seaward of the low tide line. With few exceptions, they don’t own that land; the public does. But this is tricky because the mean low tide area is seldom marked and changes historically.

I own beachfront property. I don’t mind the public walking along my wet sand area even if they are not “fishing, fowling, or navigating,” so long as by allowing this, I don’t lose any property rights in the process. Is there some way that I can be a ‘good citizen’ and still retain my property rights?”

Yes. What you appear to be worried about is the legal concept known as “prescription” or “adverse possession.” I have written a detailed post on adverse possession here. This is the idea that if someone uses your property for a sufficiently long time, they may be able to claim a property interest in it. For someone to be able to make this claim, however, their use has to be without your permission. Therefore, openly allowing the public to walk across your land (e.g., by “posting” such permission) is usually the best way of defeating someone’s ability to accrue such a right. Posting the land in this manner, of course, would not affect any access rights that anyone had already obtained before the posting.

Under existing state law, a property owner who allows the public to use his or her land for recreational purposes without charging for such use is shielded from liability for injuries sustained during that use so long as the property owner did not act with such “fault” that his or her conduct constituted “wilful, wanton or reckless conduct.”

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Well, that’s it on the rather complicated topic of Massachusetts beach access law. Enjoy your beach day and perhaps start carrying a fishing rod or line when you take a long walk!

More Helpful Resources:

Massachusetts Coastal Zone Management Fact Sheet

FAQs on Beach Access By Trisha Daly-Karlson

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

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Massachusetts Real Estate Litigation: What You Can Expect Going To Trial, Part 2

by Rich Vetstein on December 20, 2011

in Adverse Possession, Condominium Law, Landlord Tenant Law, Massachusetts Real Estate Law, Permitting/Zoning, Real Estate Litigation

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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Move That Condo! Court Orders Removal Of Encroaching Building

by Rich Vetstein on August 20, 2011

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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When Good Fences Make Upset Neighbors: Adverse Possession Law In Massachusetts

by Rich Vetstein on June 2, 2010

in Adverse Possession, Boundaries, Deeds, Fences, Massachusetts Property Values, Massachusetts Real Estate Law, Title Defects, Trespass

Click here to read about my most recent adverse possession trial victory.

Massachusetts Adverse Possession Law

Robert Frost ‘s famous poem The Mending Wall says “good fences make good neighbors.” When that fence encroaches over a neighbor’s property line, however, that good neighbor can turn nasty very quickly.

When boundary or encroachments disputes arise, a little known legal doctrine often comes into play:  adverse possession. Adverse possession is a common law concept in Massachusetts under which homeowners may lose title to their land by sleeping on their property rights for 20 consecutive years against a neighbor who has taken actions contrary to their property interests. Yes, a neighbor can effectively take over ownership of your land if you sleep on your rights. Massachusetts adverse possession law reflects a public policy aimed at inducing landowners to actively protect their land.

The classic example of adverse possession is a neighbor who puts up a fence or paves a driveway several feet over their neighbor’s property line, without permission, and this “adverse possession” continues without objection for 20 consecutive years.  Despite the fact that the neighbor’s fence or driveway encroaches the property line, under the adverse possession doctrine, the property owner may lose title to the disputed strip of land by not doing, saying or even knowing anything about it.

Requirements For Adverse Possession

A landowner can obtain adverse possession only by filing a lawsuit and establishing several elements of the claim.  (My property law professor used a handy acronym called OCEAN to help students remember them). The use of another’s land must be Open, Continuous (for 20 years), Exclusive, Adverse and Notorious. Each element has its own specific requirements, and all adverse possession cases are very fact-specific. The law does not favor adverse possession, so the burden of proof on the claimant is relatively high.

Adverse possession can also occur through multiple prior owners during the 20 year period under a theory called “tacking.” Adverse possession can also be in the form of an easement, or merely a right to use property, called a “prescriptive easement.” This could apply to the gamut of utility, pathway, or access easements.

Surveys and Stakes

Surveys typically form the genesis, and play an important role in, adverse possession cases. The parties must know where the true lot lines are on the property. Sometimes, there are disputes as to the survey in cases of old, poorly laid out lots. Remember that even if you believe the neighbor is wrong about the lot line, it is against the law in Massachusetts to remove survey stakes. (Mass. General Laws Chapter 266, Section 94).   Also under Massachusetts law, a surveyor is allowed to enter upon your land, with reasonable notice, for purposes of completing a survey.

Tips To Prevent Adverse Possession

The key to preventing adverse possession is to be proactive regarding your boundary lines and property rights. If you suspect an encroachment, obtain a full instrument survey, not a mortgage plot plan which can be inaccurate. If an encroachment is found, consult an attorney for further advice.

Generally, the most effective methods to prevent adverse possession are to:

  • Posting “No trespassing” signs (can be helpful, but is not fail-safe)
  • Physically demarcate lot lines with a fence, gate or the like (survey stakes alone may not be enough)
  • Document giving permission to an encroaching neighbor by written document or agreement
  • For prescriptive easements, record a statutory Notice to Prevent Acquisition of Easement. Note: this notice will not prevent a claim of adverse possession to the entire land.
  • Bring a lawsuit to “quiet title”
  • Submit your land to the Land Court registration system

The more land you own (especially raw woodlands) the more proactive you need to be.

Lastly, when buying new property, consider getting an enhanced title insurance policy which has coverage for encroachments and boundary issues, at a small premium over standard rates.

Adverse Possession Lawsuits

Given the high cost and low supply of land in Massachusetts, adverse possession disputes often wind up in litigation. Adverse possession litigation can be expensive because these cases are very fact-specific and require a fair amount of witnesses, factual investigation, title research, and even expert testimony. Adverse possession cases are generally difficult to win, but they can be successful with the right facts and good preparation.

The Massachusetts Land Court hears adverse possession cases along with the Superior Court. Depending on the facts of the case, the plaintiff can do a bit of “forum shopping” between the two courts.

Click here to read about my most recent adverse possession trial victory.
Click Play to listen to my radio broadcast on adverse possession
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Richard D. Vetstein, Esq. is an experienced Massachusetts adverse possession attorney who’s handled numerous adverse possession cases and trials in Land Court and Superior Court. Please contact me at [email protected] or 508-620-5352 if you are dealing with a Massachusetts adverse possession dispute.

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