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Good fences don't make good neighbors: Court rules Roxbury man has to demolish part of house built on neighbor's property
By adamg on Thu, 08/18/2011 - 5:46pm
The Massachusetts Appeals Court ruled today a Roxbury man has to tear down part of the two-unit condo building he put up on Magazine Street because he tore down a neighbor's fence and then built part of the structure where his neighbors used to plant vegetables and repair their cars.
The court said that while it couldn't figure out where the actual property line was, it didn't matter, because the neighbors had gained the disputed land through "adverse possession" - they had used it continuously for more than two decades without any complaints and presented evidence the people they bought their house from had erected the fence even earlier than that.
Because of that, the Superior Court judge who originally heard the case ruled correctly when he ordered Driscoll Docanto to pull down the part of the building extending past where the fence used to be - as much as 13 inches of the structure. The suit also names the woman who bought one of the units from him, but both courts held her harmless because she bought the unit after construction, and said Docanto holds full liability. The appeals court, in fact, had some harsh words for him:
Nor are we persuaded that the encroachment in this case was unintentional. The defendants contend that DoCanto acted "conscientiously and in good faith" because he surveyed the property to determine the record property line before commencing construction. DoCanto's protestations of good faith, however, are undermined by the judge's finding (for which we find ample support in the record) 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." DoCanto simply ignored the possibility that his construction project would encroach upon land owned by his neighbor. As such, his assertion that he acted in good faith rings hollow.
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Comments
Wow- how often does that happen?
I thought the assessors and such had some pretty accurate maps, but I guess some stuff is still blurry.
Docanto had to get a variance from the BRA to build, right?
Doesn't that usually involve hearings? One would think the situation could have been resolved at that point, perhaps by denying the variance.
Zoning board, but yes
He got a variance - based on the location of the original fence, which he then moved:
So you can begin to see why maybe the appeals court wasn't very sympathetic to his pleading.
Ah, the old "move the fence" trick.
Indeed it does sound like a disaster of Docanto's own making, then.
A simpler solution
He could have just bought the land from the neighbor.
No doubt.
I bet he'd really like a do-over.
Man what a difference
They both claim the property in question, something on the order of 120 sqft, to be valued in the low hundreds of dollars. The cost to repair the structure to conform to the judges orders is in the low hundreds too, but those are of thousands of dollars.
Sucks for him. Talking to, and interacting with, your neighbors can likely eliminate some of these issues I think. But fuck that, who wants to talk to people.
right of easement
theres a MA law where basically, if you do something for a certain amount of time and no one says otherwise, you're allowed to keep doing it no matter what.
examples: your neighbor lets you use his backyard to grow vegetables. Even if he sells his house, you would still be legally allowed to grow vegetables when the new owner has the house.
The Chatham fisherman used this law to keep their tender boats on the beaches, as they have done for years. The "McMansion" people moved in and built their houses on the properties, and were trying to prohibit the fisherman from using the beaches for their tenders.
Adverse Possession and Prescriptive Easements
You're mixing a bunch of concepts here, and none is a simple as they might seem.
It is true that one can aquire rights to an easement by prescription, or that one can aquire title to property by adverse possession, but there are a bunch of elements that you have to meet, they are quite difficult to prove and the burden of proof falls on the the person asserting the prescriptive easement or adverse possession. For example, you could be deliberately encroaching on a sliver of property next to your house with an eye toward making an adverse possession claim down the road, but if the true owner of that property walks around it every so often, you would not be able to acquire title by adverse possession because you would likely fail to meet one of the elements (exclusive possession). Fending off ap claims is a reason why people sometimes still conduct "ceremonial walks" of their (usually rural) property (it used to be far more common). The law is (probably rightfully) slanted in favor of the true owner.
With respect to the boats and beaches, that's a different kettle of fish (!). That situation concerns rights of access to the shoreline/ocean that are at least as old as the Roman Empire, and which have been in play here at least since this place was called Massachusetts Bay (there is mention of it in the revised colonial statutes of the early 1700s). The way you normally hear it described now has to do with public access to the water below the low water mark for the purposes of fishing, fowling, etc.
Shoreline law
I love shoreline cases because they almost always involve precedents going back centuries, such as one in which the appeals court ruled Sam Adams could moor his boat off Manchester-by-the-Sea - which cited a 1640 land grant from the town of Salem.
Also, isn't Louisburg Square shut off to the public one day a year to maintain the property rights of the people who live around it?
Not sure about Louis. Sq., but...
It might actually make sense, if they were trying to head off a claim that it was being "dedicated to the public domain" or something similar.
On a different note, there is also another body of law pertaining to the use of and access to the "Great Ponds" of the Commonwealth (which ponds those are is defined by statute). Now that's a quirky situation - as I recall, there is even a specific section pertaining to the landing of aircraft on said Great Ponds.
For all of the inconvenience and sometimes havoc that these laws can cause for abutters and other landowners (particularly those in the "it's my property and I can do whatever the hell I want" crowd - perhaps these folks should consider buying property in NH), we can all probably agree, that it at least keeps things interesting here in our little outpost on the North Atlantic.
Isn't Louisburg Square always closed to the public?
Thought only people living in adjoining houses had keys to the park gates, and that the same arrangement exists for Union Park and Worcester Square in the South End.
The park, yes
I was thinking of the road around it.
Shoreline open to fishing
I seem to remember something about access to the shoreline is guarenteed for people who are fishing.
There used to be pictures of Former Governor Bill Weld walking through the surf on supposedly "closed" or "private" beaches, carrying a fishing pole - for this very reason.
Weld the hunter/fisher/not-overcome-by-ideology Republican
You're probably right...hence my reference to the public's right to pass for "fishing and fowling" above.
I'm glad you mentioned Weld...his affection for nature and taking not-very-Republican positions on some issues, like that of the public's right to pass on beaches, suddenly seems so very refreshing, doesn't it?
Great post as usual
Thanks for the explanation, isaacg.
That's right nice of you to say, and I thank you.
n/t
adverse possession is adverse
Issacg covered the issues, but the point is that adverse possession is without the permission of the owner. Which is why it's called "adverse."
So growing vegetables with the permission of the owner would not give you rights which survived the permission.
REAL ESTATE 101
The ruing is absolutely correct but left one thing out. Anybody attending the first day of a RE Brokers licensing course learns this rule of land ownership.
Just curious
What were these people doing while this guy was knocking down the fence and building on their property?
Were they ignored? Intimidated? Away?