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.

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.

Condominium Unit Owners Cannot Alter Common Areas Without Consent

By Robert Nislick

You own a unit in a Massachusetts condominium and serve on your association’s board of trustees. Your board takes seriously its responsibilities to maintain, repair, and protect the condominium property. One day, the board of trustees learns that a unit owner has altered, or will imminently alter, the common areas and facilities of the condominium.

The unit owner has decided to renovate his unit. In so doing, he makes changes to the common areas and facilities. Perhaps he wants a larger living room window. In order to install the new window, he cuts a hole in the building envelope. Perhaps your condominium building is a converted loft. It occurs to the unit owner that maybe he could have higher ceilings. He decides to remove the finished ceiling and joists in order to expose the space above. Perhaps he wants to make renovations within his unit. He applies to Boston Inspectional Services Department Building and Structures Division for a permit. In order to receive the permit, he needs to add fire sprinkler heads and tap into the building’s fire alarm system. Perhaps your condominium consists of townhouses. The unit owner decides that he needs more storage and erects a shed on the condominium grounds.

These are just a few examples of how condominium common elements can be altered or encroached upon by a unit owner. The unit owner’s motivation may be innocent, nefarious, or somewhere in between. His bottom line is that he feels that he can do whatever he wants with his property. He never asked for and never received approval from the condominium trust before taking these actions.

It is well established under Massachusetts law that management and control of the common areas is vested in the organization of unit owners, i.e. the condominium trustees. When a person purchases a condominium unit, although he owns the fee interest in his individual unit, he does not get the right to change, take away from, or encroach upon the common elements.

Under certain circumstances, the trustees may choose to grant a unit owner the right to alter or use common areas, and if that is the case, the trustees may grant an easement, or designate an exclusive-use limited common area. If that is the case, then both the board and the unit owner should make sure to carefully follow the requirements of G. L. c. 183A and the governing documents for the condominium when formalizing such an arrangement. Both the board and the unit owner would be well advised to seek their own counsel to negotiate and draft such any instruments that might be needed.

What should the condominium trustees do when they believe that a unit owner has altered, or may imminently alter, the common areas and facilities without board approval?

It is important for the board to inspect the unit as soon as possible. The master deed should provide the trustees with the right to inspect the unit on reasonable notice. The trustees and the condominium’s property manager will want to take photographs. If the unit owner refuses access, the board may view such a refusal as a failure by the owner to abide by the condominium documents. It may be appropriate to levy a fine against the unit owner until he provides access. If the trustees still cannot access the unit, then the board should probably file a complaint in Superior Court and seek a preliminary injunction which orders the unit owner to provide access to the trustees.

If the trustees discover that the unit owner has altered the common areas, then the trustees should take action to compel the unit owner to restore the premises to their original condition. The trustees are likely justified in taking a firm stance against the unit owner. The board cannot tolerate action by the unit owner which may jeopardize the soundness or safety of the condominium building and its residents. If a unit owner’s construction project places public safety at risk, then the board really has no choice but to act to abate this problem immediately.

Attorney Robert Nislick is a Massachusetts condominium attorney who represents condominium trustees and unit owners. Contact him today for more information.

Smoking and Evictions in Massachusetts

By Robert Nislick

Despite the fact that the adult cigarette smoking rate has hit an all-time low, Massachusetts landlords, apartment dwellers, condominium unit owners, and property managers occasionally have to deal with issues related to smoking neighbors.

Landlords often want to know how they can prohibit a new tenant from smoking in the apartment they are renting. The landlord can have the tenant sign a “NO-SMOKING ADDENDUM” to the lease, and this will forbid the tenant and guests from smoking anywhere on the landlord’s property, inside and out. If the tenant violates the provisions of such a no-smoking addendum, the lease may permit the landlord bring a cause eviction after serving a 7-Day Notice to Quit.

But let’s say the landlord has not expressly prohibited the tenant from smoking. What happens if other residents are becoming sick or are significantly affected by the smoker next door? The lack of a specific lease provision prohibiting smoking should not limit the landlord’s ability to evict a tenant whose smoking is significantly affecting the quiet enjoyment of other tenants.

A landlord may seek possession of premises occupied by a tenant alleging that the tenant’s excessive smoking within his unit is adversely affecting the quiet enjoyment of other residents of the building. See Fairfield Bay Towers d/b/a/ Carson Towers v. Shinney, Boston Housing Court No. 13H84SP003583 (Pierce, C.J.) (Jul. 16, 2014).

Secondhand smoke may become so problematic for non-smoking tenants that a failure by the landlord to abate the problem may constitute a breach of the covenant of quiet enjoyment and a breach of the implied warranty of habitability. See 50-58 Gainsborough Street Realty Trust v. Reece, Boston Housing Court No. 98-02279 (Daher, C.J.) (Jun. 8, 1998). An affected tenant may be able to successfully withhold rent from a landlord who has not fixed the secondhand smoke problem. A landlord may potentially be liable to pay multiple damages, attorney’s fees and costs to the aggrieved tenant.

If non-smoking tenants start to complain about a smoking neighbor, it may advisable for the landlord to terminate the smoker’s tenancy, particularly where the non-smokers allege that the smoke is creating a nuisance and interfering with their quiet enjoyment. See Harwood Capital Corp. v. Carey, Boston Housing Court No. 05-SP-00187 (Nasif, J.) (Mar. 8, 2005). Additionally, the landlord may be able to obtain a preliminary injunction prohibiting the smoker from smoking anywhere in the building including within his or her unit.

Even if the lease is silent concerning smoking, if the court issues an injunction, or if the parties enter into an agreement for judgment, these are courts orders which will take priority over all lease provisions, or lack of lease provisions regarding smoking. See The Community Builders, Inc. v. Megna, Boston Housing Court No. 11H84SP002184 (Muirhead, J.) (Oct. 31, 2012).

What if the tenant allows her guests to smoke? In one case, the Housing Court granted possession to the landlord where the tenant failed to stop her family members from smoking, in violation of a no-smoking policy, even though she herself did not smoke. See Berkshire Apartments v. Macwhinnie, Western Housing Court No. 13-SP-4391 (Fields, J.) (Jul. 7, 2014).

Does the smoker have any ability to prevent his eviction? It may be possible for the tenant and landlord to negotiate an agreement whereby the tenant may stay so long as he refrains from smoking in the apartment and in common areas. The Court may also stay the issuance of the execution provided that the tenant refrains from smoking. See Lillien Realty LLC v. Tallini, Worcester Housing Court No. 13-SP-4629 (Horan, J.) (Dec. 17, 2013).


Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

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).

Trespass to Trees in Massachusetts

By Robert Nislick

“What we are doing to the forests of the world is but a mirror reflection of what we are doing to ourselves and to one another.” – Mahatma Gandhi

People cut down trees. People cut down each other. People cut down each other’s trees. In Massachusetts, if someone cuts down your trees, you may be able to sue him.

General Laws c. 242, § 7, states:

“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.”

G. L. c. 242, § 7.

It is unfortunate that some neighbors do not respect each other’s property. Perhaps, a neighbor has cut down your trees to spite you. Maybe he has cut your trees to improve his view. Possibly, he is clearing your trees to add to his lawn.

If any of these events occur, contact Robert Nislick, a Massachusetts attorney, and former Land Court law clerk, to discuss your rights and remedies.

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. “The mandated trebling of damages represents a legislative judgment as to the punitive measure required to dissuade wrongdoers.” Glavin v. Eckman, 71 Mass. App. Ct. 313, 322 (2008).

In Glavin, the defendants were looking to enhance their view of the ocean. They hired a landscaping company to top and remove the trees that stood in the way. The landscaper cut down ten large, mature oak trees standing on the property of a neighbor, without permission. The jury assessed $30,000 in damages as the reasonable cost of restoring the property as nearly as reasonably possible to its original condition. The judge trebled those damages.

The Appeals Court affirmed, and found that restoration costs were a reasonable way to measure the plaintiff’s damages, as opposed to looking at the value of the timber wrongfully cut, or the diminution of market value of the property as a result of the cutting.

The plaintiffs in Glavin supported their claim for damages through the expert testimony of an arborist, who had extensive experience in appraising the value of destroyed trees, and who testified that the replacement cost method was accepted within the community of professional arborists.

In another case, Ritter v. Bergmann, 72 Mass. App. Ct. 296 (2008), the Appeals Court affirmed the Land Court’s award of treble damages totaling $130,782, to the plaintiff, based also on the restoration cost measure of damages. In Ritter, the defendants cut down many trees and damaged others on land they did not own. The Court noted that the damage to the plaintiff that resulted from the defendants cutting down of trees was not only the potential loss in value of the property, but also the loss of the plaintiff’s privacy.

The Ritter Court also held that the Land Court had jurisdiction over the plaintiff’s trespass to trees claim where that claim was ancillary to other claims she had that were within the Land Court’s jurisdiction.

If you are in the midst of a dispute with your neighbor, or if you have been sued, contact Robert Nislick, a Massachusetts attorney, today.

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.

This Land is Your Land. This Way is My Way. Easement Disputes in Massachusetts

By Robert Nislick

When you buy a piece of land, you may naturally assume that it is yours absolutely and that no one else can enter upon it without your permission.  It is very possible, however, that other people may have rights to use your land.  While you may own the parcel, your ownership could be subject to an easement.

An easement is an interest in land which grants to one person the right to use or enjoy land owned by another.  Such an easement may take the form of a right of way, which provides rights of ingress, egress, and travel over the land subject to the easement.  This means that someone who has a right of way can cross over your land to get from one place to another.  Most likely, they will be using the right of way to get from a public street to their own land.  This scenario is very common, for instance, when two neighbors share a driveway.

Another kind of easement may allow someone to use your land for a specific purpose, such as parking.  In the crowded City of Boston, parking can be hard to come by.  How great would it be to have your own personal parking space, even if it is on someone else’s lot.

But just because it may be convenient for someone to cross over your land to get to hers, or for her to park on your land, that does not necessarily mean that she has any right whatsoever to do so.  A person who claims to have an easement may simply be no more than a trespasser.  She may be using smoke and mirrors in support of her claim, but could ultimately fail to establish the easement rights she wants.  Or perhaps, you are that person who is pretty sure you have those rights, but someone is preventing you from exercising them.

I am a Massachusetts attorney who specializes in handling all types of easement disputes.  I can analyze your situation and explain the options and the potential outcomes.  I can file a lawsuit on your behalf, or if someone has sued you, defend the case with a view towards achieving the best possible outcome.  I can draft new easements and modify old ones so as to help you accomplish what you want to do, while also protecting your interests.

Feel free to call me at (508) 405-1238 or e-mail me for a free consultation.