Robert Nislick By Robert Nislick
You are a landowner in Massachusetts. Suppose that you are in the midst of a dispute with your neighbor concerning your boundary line. Perhaps your neighbor’s shed encroaches on your property. Maybe you have fenced your neighbor off from his land for more than twenty years, and you are contemplating filing an action to seek title to the land by adverse possession.
In any event, you have decided to hire a professional land surveyor to locate and monument the property boundaries. Quite possibly, the surveyor will need to enter onto your neighbor’s land in order to perform the survey. Your neighbor may not be happy about this. He may allege that the surveyor is trespassing.
Does the surveyor have the right to enter your neighbor’s property? General Laws c. 266, § 120C, states:
“Whenever a land surveyor registered under chapter one hundred and twelve deems it reasonably necessary to enter upon adjoining lands to make surveys of any description included under “Practice of land surveying”, as defined in section eighty-one D of said chapter one hundred and twelve, for any private person, excluding any public authority, public utility or railroad, the land surveyor or his authorized agents or employees may, after reasonable notice, enter upon lands, waters and premises, not including buildings, in the commonwealth, within a reasonable distance from the property line of the land being surveyed, and such entry shall not be deemed a trespass. Nothing in this act shall relieve a land surveyor of liability for damage caused by entry to adjoining property, by himself or his agents or employees.”
Essentially, so long as the landowner, his surveyor, or his lawyer, provides reasonable notice to the neighbor, then the surveyor can enter onto the neighbor’s land, near the property line, and the entry will not be a trespass. If you have received a letter stating that your neighbor’s surveyor needs to enter your land in order to make the survey, it would most likely be prudent to consent to the entry.
In one case involving a dispute over the use of an easement allowing the plaintiffs to traverse certain property of the defendant, utilizing a set of stairs to gain access to a local beach, the plaintiffs sought permission of the defendant to have their surveyor enter the defendant’s property for purposes of determining the feasible location and design for new stairs. When the defendant denied the plaintiffs’ surveyor permission to enter the property, the plaintiffs sought, and the Land Court entered a preliminary injunction which provided the surveyor with reasonable access to the defendant’s land.
In another case, the Land Court ordered that if the surveyor had to enter the boundaries of the defendants’ property in order to complete its field work, the surveyor could do so without hindrance, provided reasonable notice was given in accordance with G. L. c. 266, § 120C, and that violations would subject the parties to sanctions of $250.00 per incident.
Let’s say that you have already had your property surveyed. You staked or placed boundary markers on your land. To your dismay, your neighbor removes the stakes or boundary markers. Such conduct may entitle you to seek injunctive relief and/or money damages based on trespass.
In another case, the Supreme Judicial Court affirmed a permanent injunction which enjoined the defendants from interfering with any registered land surveyor even if the surveyor on the defendants’ property, and also from touching, altering, or interfering with any boundary marker or surveyor’s marker or any object that appears to be such a marker on or within twenty feet of the plaintiff’s property, even if it is on or believed to be on the defendants’ property. See Haufler v. Zotos, 446 Mass. 489, 508 n.35 (2006).
Additionally, under G. L. c. 266, § 94, the destruction of a boundary marker may constitute a criminal act. The statute states in pertinent part:
“Whoever wilfully, intentionally and without right breaks down, injures, removes or destroys a monument erected for the purpose of designating the boundaries of a . . . tract or lot of land, . . . shall be punished by imprisonment for not more than six months or by a fine of not more than two hundred dollars. Any person convicted under the provisions of this section shall, in addition to any imprisonment or fine, make restitution.”
If you need an attorney to represent you concerning a boundary line dispute, contact Robert Nislick, a Massachusetts real estate lawyer, and former law clerk at the Land Court, to discuss your rights and remedies. For more information, contact him at (508) 405-1238, or by e-mail.