The Surveyor’s Right to Enter Land in Massachusetts

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.”

G. L. c. 266, § 120C.

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.”

G. L. c. 266, § 94.

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.

The Rights of an Easement Holder to Improve a Right of Way or Paper Street in Massachusetts

By Robert Nislick

You are a Massachusetts homeowner. Your property abuts a street that may never have been paved. It could be a dirt road that is hard to navigate in wet weather and dusty and bumpy when it is dry.

Alternatively, your property abuts a street that exists only on paper. The way exists in a deed or on a plan. But in reality, no road has ever been built, and the area is completely covered with trees.

It is possible that you own land that is set back from a public way. In order to get to the property, you need to cross over a paper street, which is actually someone else’s yard.

Whatever the situation on the ground has been in the past, you want to improve the right of way. Assuming you have rights to use this way, what rights do you have as an easement holder to use and improve this right of way or paper street?

A holder of a right of way typically has the right to make it passable and usable for its entire width. See Guillet v. Livernois, 297 Mass. 337, 340 (1937). The right of anyone entitled to use a private way to make reasonable repairs and improvements is well established in cases where the way is already in use. The right exists even more clearly where without improvement the way is impassable and useless. See id.

Where an easement grants the “right to pass and repass” that right has been found to include all rights reasonably incidental to the enjoyment of the right to pass, including the right to make reasonable repairs and improvements to the right of way. See Farber v. Chatham Conservation Found., 56 Mass. App. Ct. 584, 589 (2002).

“Such reasonable repairs include paving the easement and such other improvements as would be consistent with principles of safety.” Barlow v. Chongris & Sons, Inc., 2 LCR 22, 23 (1994), aff’d, 38 Mass. App. Ct. 297 (1995). “Clearing limbs from a roadway, smoothing the surface of a way, placing gravel on a road, or even paving a road have been condoned as reasonable repairs, if necessary to enjoyment of the easement.” Glenn v. Poole, 12 Mass. App. Ct. 292, 296 (1981).

Additionally, G. L. c. 187, § 5, states in part: “”The owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appurtenances necessary for the transmission of gas, electricity, telephone, water and sewer service, provided such facilities do not unreasonably obstruct said private way or other private ways”. G. L. c. 187, § 5.

“Courts have found that private utilities fall within a broad spectrum of rights given to easement holders by G. L. c. 187 § 5.” Shawkemo Ducklands LLC v. Nantucket Planning Board, Land Court Miscellaneous Case No. 07 MISC 355356 (AHS), slip op. at 52 (Sands, J.) (Oct. 26, 2012). The installation of private septic systems and drainage systems have been deemed permissible pursuant to the statute.

Additionally, the statute applies to persons hold easement rights not only by deed, but also “when rights in a way arise by implication or necessity based on the parties intent,” and also to “an easement by estoppel.” See Post v. McHugh, 76 Mass. App. Ct. 200, 206 (2010).

About the author: Robert Nislick is a Massachusetts real estate lawyer and former law clerk at the Land Court.  For more information, contact him at (508) 405-1238, or by e-mail.

The Doctrine of Tacking in Massachusetts Adverse Possession Claims

By Robert Nislick

In order for one Massachusetts landowner to establish title by adverse possession to land owned of record by another, the claimant must prove “nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Lawrence v. Concord, 439 Mass. 416, 421 (2003).

Frequently, a person who is adversely possessing another’s land may not be able to establish that he personally has used his neighbor’s land for twenty years. This might be because the adverse possessor only recently purchased his property. Alternatively, it might be because he inherited the property he now owns.

The twenty-year requirement is strictly construed. For example, in one case, the court ruled that a claim of adverse possession that continued for “nineteen years, eleven months, and five days” was insufficient, and did not bar the record owner from retaking possession of a disputed strip of land. See Hewitt v. Peterson, 253 Mass. 92, 93-94 (1925).

“[A]lthough the time period is often described as the time necessary to achieve title by adverse possession, it actually is a limitations period, after which the true owner may not recover possession of the land from the adverse possessor.” In re Colarusso, 382 F.3d 51, 58 (1st Cir. 2004).

Even if the claimant has not personally used the land for twenty years, he may satisfy the requirement by tacking on “several periods of successive adverse use by different persons provided there is privity between the persons making the successive uses.” See Ryan v. Stavros, 348 Mass. 251, 264 (1964). Privity exists when there is “some relation between the successive users of such a nature that the use by the earlier user can fairly be said to be made for the later user, or there must be such a relation between them that the later user can be fairly regarded as the successor to the earlier one.” See id.

For example, the case of AM Properties, LLC v. J&W Summit Ave, LLC, Land Court Miscellaneous Case No. 13 MISC 479776 (AHS), (Sands, J.) (Jul. 2, 2015), involved a small strip of land located along a common boundary between the parties’ properties and two passageways to access the strip. The plaintiff purchased its property in 1999 from a trust, which had purchased the property in 1934. The trust had leased the property to a tenant in August 1993. The tenant soon began improving the strip on the defendant’s property.

The court noted that privity of estate exists between lessor and lessee. Additionally, the court noted that, “the adverse possession of the tenant maybe tacked to that of the landlord”. See Holmes v. Turner’s Falls Co., 150 Mass. 535, 547 (1890). Therefore, the court found that plaintiff could tack its use of the strip onto that of the trust for purposes of establishing adverse possession. Accordingly, even though plaintiff itself was adversely possessing defendant’s strip for less than twenty years, it was able to add on, or tack, its predecessor’s tenant’s use onto its claim.

In Perry v. Nemira, Land Court Miscellaneous Case No. 11 MISC 457157 (AHS), (Sands, J.) (Jan. 15, 2015), plaintiff acquired title to his property in early 1996. Plaintiff was required to demonstrate adverse use since 1991. Plaintiff proffered no evidence to suggest that his predecessors ever adversely possessed the disputed area. Moreover, plaintiff’s predecessor in title had essentially abandoned the property in late 1994 when she was incarcerated. Thus, the court found that even if the plaintiff’s predecessor intended to adversely possess the disputed area, there was a break in adverse use from late 1994 to early 1996. This prevented plaintiff from establishing continuous adverse use for the requisite twenty-year period.

In Giombetti Clue Props., LLC v. DiFronzo, Land Court Miscellaneous Case No. 10 MISC 443972 (HMG), (Grossman, J.) (Nov. 7, 2014), plaintiff sought a prescriptive easement over a portion of a paved driveway that encroached onto the neighboring property. The defendant argued that plaintiff’s claims failed because one of plaintiff’s predecessors sought permission to pave the driveway. The court noted that the plaintiff could not seek to tack its own adverse use onto a period of adverse use by an earlier predecessor, thereby “leap-frogging” over a period of permissive use.

If you have a claim or need to defend against a claim for adverse possession or prescriptive easement, contact Robert Nislick, a Massachusetts real estate lawyer.  He can be reached at (508) 405-1238, or by e-mail at rob@nislick.com.

Love Your Neighbor, Et Cetera – A Holiday Wish

By Robert Nislick

“You shall love your neighbor as yourself.” Leviticus 19:18.

In the world of real estate litigation, however, not everyone abides by this commandment.

During this holiday season, as we celebrate miracles and pray for peace, I offer the following wish:

Love your neighbor, landlord, tenant, easement holder, servient estate owner, licensee, trespasser, adverse possessor, condominium trustee, homeowner’s association, planning board, zoning enforcement officer, health inspector, building department, conservation commission, architectural commission, assessor, public works department, home improvement contractor, real estate developer, surveyor, harbormaster, state agency, title examiner, insurance company, tree warden, fence viewer, judge, clerk’s office, court officer, and all persons engaged in trade or commerce.

And if your heart will allow, then love your lawyer too!

About the author: Robert Nislick is a Massachusetts real estate lawyer.  He can be reached at (508) 405-1238, or by e-mail.

Frequently Asked Questions About Tree Law in Massachusetts

By Robert Nislick

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Massachusetts homeowners frequently have questions about the ownership of trees on their property and the right to cut overhanging branches from a neighbor’s tree.

Here are some of those questions, with answers, based on Massachusetts law.

Question:        If a tree trunk is wholly on Alan’s property, who owns the tree?

Answer:          Alan owns the tree. “Where the trunk of a tree stands wholly on the land of one proprietor, he has been deemed the owner of the entire tree”. Levine v. Black, 312 Mass. 242, 243 (1942).

Question:        Alan and Bill are neighbors. The branches of Alan’s tree extend over the property line onto Bill’s side. Can Bill cut the branches of Alan’s tree?

Answer:          Bill can cut the branches of Alan’s tree to the extent they are on Bill’s property. “[T]here is no doubt of the right of the adjoining proprietor to cut off limbs and roots which invade his premises.” Levine, 312 Mass. at 243. “Notwithstanding the legal ownership of the property, the overhanging branches of the plaintiff’s tree can be cut to the property line by the abutter.” Macero v. Busconi Corp., 12 Mass. L. Rptr. 521 (2000).

Question:        Does Bill have to ask Alan’s permission before cutting the overhanging branches?

Answer:          No. “His remedy is in his own hands.” Michalson v. Nutting, 275 Mass. 232, 234 (1931). “Should the roots or branches invade or overhang the land of another, that party has a definite right of self-help to trim the roots and branches to the extent they are on his property.” Bassin v. Fairley, Land Court Miscellaneous Case No. 11 MISC 451773 (AHS) (Sands, J.) (June 17, 2014). However, even though he doesn’t have to, Bill may want to consider discussing it with Alan beforehand so as to maintain neighborly relations between them.

Question:        Carol and Debbie are neighbors. The trunk of a tree sits on both properties. Who owns the tree?

Answer:          Both Carol and Debbie have legal interests in the tree. Where, “the trunk stands across the boundary line . . . [i]t has generally been said that under these circumstances both parties own the whole tree as tenants in common.” Levine, 312 Mass. at 243.

Question:        What rights do Carol and Debbie have to trim overhanging branches?

Answer:          They generally have the same rights that anyone has to trim overhanging branches. “[I]t is difficult to see why either owner should have any less right to cut off branches and roots than he would have if the trunk stood entirely upon the other’s land.” Levine, 312 Mass. at 244.

Question:        A tree straddles the property line of Edward and Frank. Edward wants to remove it completely. Can he?

Answer:          Most likely not. “Each of the parties held a legal interest in that part of the tree on his own property but also had the right to prevent the other party from dealing with part of the tree so as to injure or destroy the whole tree.” Lasell College v. Fox, 53 Mass. App. Ct. 1103 (2001). The only way in which Edward may be able to remove such a tree in its entirety is if the tree constituted a nuisance. See Bassin v. Fairley, Land Court Miscellaneous Case No. 11 MISC 451773 (AHS) (Sands, J.) (June 17, 2014).

Question:        George and Harold are neighbors. A large healthy willow tree on George’s property overhangs Harold’s driveway. Leaves, sap, and branches fall onto Harold’s driveway. Harold slips and falls on the sap and leaves that fell on his driveway from George’s tree. Is George liable for Harold’s injuries?

Answer:          No. The willow will not weep for Harold. She should have cut the overhanging branches her property so as to prevent herself from getting injured by George’s tree. George is not liable. “The failure of a landowner to prevent the blowing or dropping of leaves, branches, and sap from a healthy tree onto a neighbor’s property is not unreasonable and cannot be the basis of a finding of negligence or private nuisance. Of course, a neighbor has the right to remove so much of the tree as overhangs his property. . . . To impose liability for injuries sustained as a result of debris from a healthy tree on property adjoining the site of the accident would be to ignore reality, and would be unworkable.” Ponte v. DaSilva, 388 Mass. 1008 (1983).

Question:        Irene and Janet are neighbors. A large poplar tree on Janet’s property is growing so much that its roots are extending onto Irene’s property. The roots of Janet’s tree have caused the cement under Irene’s house to crack and crumble, potentially injuring the foundation of Irene’s house. If Irene sues Janet, would the court order Janet to prevent the harm to Irene and compensate Irene for her damages?

Answer:          Probably not. The court would probably deny relief to Irene and rule that she could have and should have exercised her right of self-help to trim the roots that invaded her property before causing damage to it. See Michalson, 275 Mass. at 234.

Question:        Keith wants to grow trees on his entire lot. The shade of the trees is bothering is next door neighbor Larry. What can Larry do about it?

Answer:          Not much. The owner of a lot may plant shade trees upon it, or cover it with a thick forest, and the injury done to the neighbor is no violation of his rights. See Michalson, 275 Mass. at 233.

Question:        One day, Larry decides to cut down Keith’s trees, without Keith’s permission. What are Keith’s remedies against Larry?

Answer:          Larry is liable for the tort of trespass to trees. The Massachusetts trespass to trees statute, G. L. c. 242, § 7, provides landowners with a remedy against someone who willfully cuts down someone else’s trees. The wrongdoer shall be liable to the owner for three times the amount of damages, unless he had good reason to believe the land was his own, or he was lawfully authorized to cut the trees. For a detailed analysis, see my companion article Trespass to Trees in Massachusetts.

About the author: Robert Nislick is a Massachusetts real estate lawyer.  He can be reached at (508) 405-1238, or by e-mail at rob@nislick.com.

Getting and Removing a Lis Pendens in Massachusetts

 By Robert Nislick

When Massachusetts real estate owners are involved in land disputes, they frequently want to know how getting a lis pendens may help them. A plaintiff may seek to obtain and record a memorandum of lis pendens on a defendant’s property when instituting a proceeding that affects the title to real property or the use and occupation thereof or the buildings thereon. See G. L. c. 184, § 15 (a). A lis pendens often provides a party with leverage against his litigation opponent. Since a recorded memorandum of lis pendens essentially tells the world that a controversy exists concerning a piece of land, a plaintiff can usually place his rival at a practical disadvantage by recording such an instrument. Lenders and buyers will naturally have reservations about obtaining an interest in land, where they will be bound subsequently by the court’s judgment in the underlying controversy.

“A memorandum of lis pendens is a notice on the record title of real estate that reflects the pendency of any action that ‘affects the title to real property or the use and occupation thereof.’”[1] “[T]he fundamental remedial purpose of the statute [is] to ‘ensure that a prospective third-party transferee can, with the exercise of reasonable prudence, acquire information relevant to a decision whether to consummate the transaction.’”[2]

From the perspective of someone who may want to buy a piece of real estate that people are presently fighting about, a memorandum of lis pendens gives the innocent prospective buyer vital information that he might not otherwise have. Without a recorded memorandum of lis pendens, a buyer may unwittingly buy his way into a lawsuit. The memorandum of lis pendens protects the innocent buyer by informing him, ahead of time, that the seller may not be able to convey good and clear record and marketable title, or that someone is asserting a claim to that property.

Let’s say you are the plaintiff, the person who is asserting a claim to the other person’s property. Perhaps you are asserting a claim of title by adverse possession against your neighbor. Similarly, you may have acquired a prescriptive easement over your neighbor’s property. It might be that your neighbor is blocking your access to a right of way.

Alternatively, you may have a binding offer to purchase real estate or purchase and sale agreement. The seller is refusing to consummate the transaction and you want to sue him for specific performance. These are various situations in which a plaintiff may seek a lis pendens.

A party seeking a memorandum of lis pendens should reasonably determine that his claim “affects the title to real property or the use and occupation thereof or the buildings thereon”. See G. L. c. 184, § 15 (a).

If it does, then the plaintiff can file a motion for a finding and endorsement of a memorandum of lis pendens. A party seeking a memorandum of lis pendens should follow carefully the procedures for obtaining a lis pendens set forth in G. L. c. 184, § 15 (b), which include filing a verified complaint, including a certification that “the complainant has read the complaint, that the facts stated therein are true and that no material facts have been omitted therefrom”, and naming all owners of record as defendants.

“Upon motion of a party, if the subject matter of the action constitutes a claim of a right to title to real property or the use and occupation thereof or the buildings thereon, a justice of the court in which the action is pending shall make a finding to that effect and endorse the finding upon the memorandum.” G. L. c. 184, § 15 (b), third sentence (emphasis added).

Under certain circumstances, a plaintiff may move for an ex parte motion for memorandum of lis pendens. This means that the plaintiff is asking the court for relief without the other side having notice or being present. “If the memorandum is approved ex parte, it shall contain an additional finding that either (1) the defendant is not then subject to the jurisdiction of the court in that action, or (2) there is a clear danger that the defendant, if notified in advance of the endorsement of the memorandum, will convey, encumber, damage or destroy the property or the improvements thereon.” G. L. c. 184, § 15 (b), fifth sentence.

A defendant whose land has been encumbered by a memorandum of lis pendens can file a special motion to dismiss, a statutorily created remedy which is designed to expeditiously remove an unjustified lis pendens, and to dismiss frivolous claims brought in connection with the acquisition of such a lis pendens. See G. L. c. 184, § 15 (c). The General Laws also provides that the court award an aggrieved party costs and attorney’s fees in connection with the grant of a special motion to dismiss. The statutory mechanism for filing a special motion to dismiss a lis pendens, which was enacted by St. 2002, c. 496, and codified at G. L. c. 184, § 15.

“General Laws c. 184, § 15, provides ‘a mechanism for expedited removal of an unjustified lis pendens, including dismissal of frivolous claims supporting an approved lis pendens.’”[3] A party can “move for dissolution of the lis pendens and seek dismissal of the underlying claim if he or she believes that such claim is unjustified and frivolous, upon an expedited hearing and with entitlement to costs and reasonable attorney’s fees if successful. See G. L. c. 184, § 15(c), added by St. 2002, c. 496, effective January 31, 2003. . . . A litigant abused by bad faith claims and the use of lis pendens for their prosecution is far from remediless.”[4] “Under G. L. c. 184, § 15 (c), a party who believes that a claimant’s action or claim supporting a lis pendens is frivolous may file a special motion to dismiss.”[5]

“[T]he statute creates the special motion to dismiss as a way for the defendant to go beyond clearing the record title of the memorandum, and to gain dismissal of the entire claim. . . . [T]he special motion to dismiss deals with the sufficiency of the claim as a legal and factual matter, testing for frivolity by the distinct standards the statute sets out. The special motion to dismiss is considered by the court, if necessary, with the benefit of affidavits and other evidence. And in the case of allowance of a special motion to dismiss, the court is required by the statute to award ‘the moving party costs and reasonable attorneys fees, including those incurred for the special motion, any motion to dissolve the memorandum of lis pendens, and any related discovery.’”[6]

Attorney Robert Nislick is a Massachusetts real estate attorney who practices in Superior Court and Land Court. Contact him today for more information.

[1] McMann v. McGowan, 71 Mass. App. Ct. 513, 519 (2008), quoting Wolfe v. Gormally, 440 Mass. 699, 700 (2004).

[2] Wolfe v. Gormally, 440 Mass. 699, 706 (2004), quoting Debral Realty, Inc. v. DiChiara, 383 Mass. 559, 562 (1981).

[3] McMann, 71 Mass App. Ct. at 519, quoting Galipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct. 73, 81 (2005).

[4] Powell v. Stevens, 69 Mass. App. Ct. 87, 90 (2007).

[5] Faneuil Investors Group, LP, v. Board of Selectmen of Dennis, 458 Mass. 1, 2 n.2 (2008).

[6] Sapera v. VBDC, LLC, Land Court Miscellaneous Case No. 325720 (GHP) slip op. at 3 (Piper, J.) (Apr. 6, 2009).

Good Fences and Spite Fences in Massachusetts

By Robert Nislick, Esq.

When Massachusetts neighbors start to disagree with each other, it should come as no surprise when someone wants to erect a fence. Suppose that you have had a falling out with your neighbors. His car is loud. Her dog runs around and barks uncontrollably. They park on your property. Their shed encroaches over the property line.

You have tried to approach them like reasonable people. You have asked them to be a little more considerate. Sadly, this has not gone over so well. Now it is tense whenever you see them. They are making your family feel uncomfortable in your own home. You value your privacy, and you feel like your neighbors are invading it.

You want to put up a fence. What can you do? What can’t you do?

“Indeed, the law specifically recognizes the rights of landowners to construct boundary fences. So long as they comport with zoning and environmental laws, any applicable and enforceable private land restrictions that may exist, and do not violate G. L. c. 49, § 21, they are permissible.”[1]

Every town has different rules, and it may be wise to call your local building department before you do anything that may run afoul of the law. For example, in Framingham, “A building permit is required for all fences over six feet in height. Any fence over six feet in height must also meet the applicable property setbacks. Either fence side can face the owner or his neighbor’s property. A fence six feet or less in height can be placed on the owner’s property line.”[2]

By way of further example, the town of Merrimac has a “‘Good Neighbor’ Fence Policy” which advocates, among other things, that you discuss your plan with abutters before doing any work, verify the property line and construct the fence about one foot in, place the finish side out, and not pose a danger to anyone.[3]

If you call a reputable fence company who does work regularly in your town, they will probably be knowledgeable about any particular bylaws that may apply. They will probably be cautious so that your fence sits entirely within your property, and does not encroach onto the adjoining lot.

If you tell the fence installer that you intentionally want to block your neighbor’s view and access to light and air by erecting a ten-foot-high fence on the neighbor’s property, they will probably tell you to call someone else.

But what if your neighbor puts up a fence to spite you?

If your neighbor has erected or is threatening to erect a spite fence, contact Massachusetts land use attorney Robert Nislick, today.

The Massachusetts spite fence statute states:

“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 shall be deemed a private nuisance. Any such owner or occupant injured in the comfort or enjoyment of his estate thereby may have an action of tort for damages under chapter two hundred and forty-three.”[4]

In addition to awarding damages, the court may also enter injunctive relief abating so much of the fence as exceeds six feet in height.[5]

In one Land Court case, Ms. A erected an eight-foot tall stockade fence to block Ms. B’s view of a lake. Then Ms. B built a deck off her second floor so she could still view the lake. Next, Ms. A planted a fifteen-foot tall tree directly in the way to block that view as well. The Land Court judge had “no doubt whatsoever that the fence and tree were placed there by Ms. [A] with malice and for the purpose of annoying Ms. [B], and that to the extent they exceeded six feet they were not ‘really necessary for any reason.’”[6]

The Land Court ruled that the eight-foot fence was clearly within the scope of the Massachusetts spite fence statute, G. L. c. 49, § 21. Interestingly, the Land Court also ruled that the fifteen-foot tree was a “structure in the nature of a fence” also within the scope of the statute.

How can you analyze whether your neighbor will be liable for erecting a spite fence?

“Malevolence must be the dominant motive-a motive without which the fence would not have been built or maintained. . . . If the height above six feet is really necessary for any reason, there is no liability, whatever the motives of the owner in erecting it. If he thinks it necessary, and acts on his opinion, he is not liable because he also acts malevolently.”[7]

The court will want to know whether the neighbor acted malevolently against you in erecting the fence. There may be a reason, other than malice towards you, that the neighbor erected a fence higher than six feet. In such a case, you would not prevail against him in a nuisance under the spite fence statute. But even if the fence would not be viewed as a spite fence, it may still be illegal for some other reason, and you may be able to compel him to remove it.

Attorney Robert Nislick is a Framingham, Massachusetts, land use attorney. Contact him today for more information.


[1] Frigoletto v. Pirro, Land Court Miscellaneous Case No. 302684 (KCL) (Long, J.) (Jan. 21, 2009).

[2] http://www.framinghamma.gov/FAQ.aspx

[3] http://www.merrimac01860.info/Pages/MerrimacMA_Inspections/Fence.pdf

[4] G. L. c. 49, § 21.

[5] See Rice v. Moorehouse, 150 Mass. 482, 483 (1890).

[6] See Duey v. Trudel, Land Court Miscellaneous Case No. 06 MISC 336171 (KCL) (Long, J.) (Sep. 28, 2010).

[7] Rideout v. Knox, 148 Mass. 368, 373 (1889).

 

How to Interrupt a Claim of Adverse Possession and Prevent the Acquisition of an Easement in Massachusetts

By Robert Nislick

You are a Massachusetts landowner. You may have recently purchased your property. Maybe you have owned the land for a long time. One day, you realize that your neighbors are doing something that irritates you. Perhaps they are parking cars on your property. Possibly they are crossing over your property. Maybe they have erected a shed on your property. They may even be mowing the grass or cutting down trees on your land to use for firewood.

Whatever the neighbors are doing, it is annoying and you want them to stop. After all, this is your land, not theirs. You have a survey done and it is clear that the neighbors are encroaching on your property. You discuss it with them. They tell you to pound sand. Even worse, they tell you they have a claim for adverse possession or a prescriptive easement against you.

You are not exactly sure what that means, but it sounds intimidating. The main difference between adverse possession and a prescriptive easement can be understood this way: Adverse possession gives them ownership of your land, whereas a prescriptive easement gives them the right to use your land.

Questions swirl around in your head. Can they really take my land? Are they blowing smoke? What can I do to stop them? How can I protect my property?

If you in the midst of a land dispute, contact Robert Nislick, a Massachusetts attorney and former Land Court law clerk, to discuss your rights and remedies.

In reality, it is difficult to establish a claim of adverse possession. “A party claiming title to land through adverse possession must establish actual, open, exclusive, and non-permissive use for a continuous period of twenty years.”[1] “If any of these elements is left in doubt, the claimant cannot prevail.”[2]

It is also difficult to establish a claim of prescriptive easement. “Acquisition by prescription of a right of way over land of another requires continued, uninterrupted use of that easement for twenty years.”[3] “As with adverse possession, the use must be open, notorious, continuous, and adverse.”[4] “No person shall acquire by adverse use or enjoyment a right or privilege of way or other easement from, in, upon or over the land of another, unless such use or enjoyment is continued uninterruptedly for twenty years.”[5]

In any event, the true owner of the property should not sit idly by. It is particularly urgent for the landowner to do something to cut off the accrual of the neighbor’s claim where close to twenty years have passed. “To stop the running of the statute, the owner’s entry, with few exceptions, must be done openly on the land, so as to give notice of the interruption.”[6]

Usually, this means filing a lawsuit against the adverse possessor. “In Massachusetts, the filing of a petition to register title to land or a complaint to establish title to land immediately interrupts adverse possession of that land.”[7] “The filing of a lawsuit stops the period of adversity since the court is charged with determining the state of the title at the time the action is filed.”[8]

The landowner may also seek an injunction to force the neighbor to remove encroachments from the property. “In Massachusetts a landowner is ordinarily entitled to mandatory equitable relief to compel removal of a structure significantly encroaching on his land . . . .”[9]

One thing a landowner may want to do to prevent someone from acquiring a right of way or other easement in or over his land, is to post, serve, and record a notice to prevent the acquisition of easement by custom, pursuant to G. L. c. 187, § 3. Under this statute, a person “may give public notice of his intention to prevent the acquisition of such easement, by causing a copy of such notice to be posted in a conspicuous place upon the premises for six successive days, and such posting shall prevent the acquiring of such easement by use for any length of time thereafter; or he may prevent a particular person or persons from acquiring such easement by causing a copy of such notice to be served upon him or them . . . .”[10]

“While the posting of such a notice upon the land is an act of ownership and may constitute evidence bearing upon the continuity of an adverse possession . . . it does not necessarily, as matter of law, interrupt such possession.”[11] Very few cases have discussed whether the posting of a notice pursuant to G. L. c. 187, § 3, interrupts the accrual of an adverse possession claim, rather than simply the accrual of a prescriptive easement. The most prudent course of action for the landowner is to file suit against the adverse possessor before twenty years of actual, continuous, open, exclusive, and non-permissive use pass.

If you are embroiled in a land dispute with your neighbor, call Robert Nislick, a Massachusetts real estate attorney, today.


[1] Totman v. Malloy, 431 Mass. 143, 145 (2000).

[2] Mendonca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323, 326 (1968).

[3] Stone v. Perkins, 59 Mass. App. Ct. 265, 266 (2003).

[4] Id.

[5] G. L. c. 187, § 2.

[6] Pugatch v. Stoloff, 41 Mass. App. Ct. 536, 541-542 (1996).

[7] Id. at 542 n.8.

[8] Galinat v. Charlton, Land Court Miscellaneous Case No. 399614 (KCL), slip op. at 4-5 (Long, J.) (Jun. 8, 2009).

[9] Xifaras v. Andrade, 59 Mass. App. Ct. 789, 794 (2003).

[10] G. L. c. 187, § 3.

[11] Rothery v. MacDonald, 329 Mass. 238, 241 (1952).

Adverse Possession in Massachusetts

By Robert Nislick

Many of us wish to live in a world with friendly neighbors, and in a house with freshly painted white picket fences, and ample and accessible parking.  When you have bad neighbors, the dream can quickly turn into a nightmare.  One day you learn that your neighbors’ fence is over the property line.  Perhaps you have realized that they are parking on your land.  You try to mention it politely but it does not go well.

Gone is the welcome wagon that greeted you when you came to town.  Now you are going off the rails on a crazy train.  Your neighbors say that their fence has been there forever.  Although your survey shows the actual boundary, they don’t care.  They are not moving the fence.  Even worse, they tell you they now own your land.  How can that be possible?

Under the law of adverse possession, a person can actually cut off the ownership rights of the true owner of land.  Whereas someone might have been merely a trespasser, if he makes actual uses of the land of another, openly, notoriously, adversely, exclusively, nonpermissively, and continuously for a period of twenty years, the true owner may find himself out of luck.  A court could rule that the trespasser has now become the owner, and the person who was the owner has lost his ownership of the land.

If you find yourself in a dispute with your neighbor, you should contact Robert Nislick, a Massachusetts real estate lawyer, based in Framingham. I can help you analyze the situation and determine what claims you may have and whether they have any valid claims against you.  If someone is adversely possessing your land, there may be several things you can and should do to prevent the loss of your land and to keep your neighbor off your property.