The Massachusetts Appeals Court ruled today that a Newton couple can claim some land that used to belong to a neighboring lot because the people they bought the land from had put up a fence five feet over the line and the neighboring owner didn't complain - for at least 20 years.
In a ruling that upholds a 2019 Land Court decision, the appellate court said that the couple, the Nannuccis, had proven that they and their predecessors had maintained the five-foot strip behind a wooden fence "in a manner that was actual, notorious, exclusive and adverse" for the state-required 20 years and so the land is now theirs.
However, there are limits, and in this case a Land Court judge ruled the Nannuccis were owed nothing, nothing, good day, sir, for the three trees their neighbor cut down in a three-foot-wide strip they also claimed on the other side of the fence, because they could not prove they or previous owners of their house ever exclusively maintained the property on the other side of the fence.
Both the Nannuccis and the Hynds bought their Chaske Avenue properties in 2012. The Hynds property actually consists of two lots, and Stephen Hynds, a developer, quickly set about to develop the second lot - between his house and the Nannucci land - for construction of a house there. He had the land surveyed and discovered his property actually started five feet on the Nannucci side of a wooden fence between the two properties, a fence he wanted to tear down.
The Nannuccis, who had their house under agreement at the time Hynds had his land surveyed, agreed to meet with him on the issue. As Land Court Judge Keith Long wrote, "it was not the happiest of meetings."
The Nannuccis, shocked to learn the property they were about to buy not only did not extend just past the trees, but stopped five feet before the fence, agreed to remove the fence, but only on the condition Hynds not build the new house. He refused, the Hynds bought their property anyway, and the fight was on, Long wrote:
Nothing further happened until October 15, 2012 when Mr. Hynds, tired of waiting for the encroaching part of the fence to be removed, removed it himself and cut down the three trees, each of which showed signs of rot. The Nannuccis were angry at the loss of privacy and put up a solid, tall wooden fence all along the record boundary line to block out the view of Lot 51 [the empty Hynds lot] , which was now occupied by Mr. Hynds' back hoe and other equipment. Mr. Hynds has not yet constructed a house on the lot, and it is not clear whether he can actually do so. Relations between the parties continued to deteriorate, with quarrels about dogs, restraining orders sought, and complaints made to the Newton building inspector.
In October, 2014, the Nannuccis sued.
And today, six years later, and for the second time, they've won in court, at least about the five-foot-wide strip.
Long ruled that they had presented enough evidence that sometime at least 20 years before they bought their property, previous owners had put up a fence, consisting mainly of chicken wire, five feet onto what would become Hynds's property, then replaced that with a wooden-slat fence, and when that rotted, put up another.
Equally important was proof that prior owners had actively used the land - as that is also required for a claim of adverse possession. Now, normally, leaf raking and grass mowing in an urban area such as Newton wouldn't be enough, since urban residents rake and mow across property lines all the time without expecting to enlarge their land holdings, Long wrote, but couple that with the fence and the more unkempt condition on the other side of the fence, well, that's sufficiently open, notorious and adverse to take ownership, the judge ruled:
Here, the fence and the visual extension of its line, coupled with the regular raking and mowing of the "extended" area which gave it a maintained appearance distinct from the area between it and the trees, together constitute sufficiently "open", "notorious", and "adverse" acts. Anything beyond that clearly visualized and maintained line does not.
And yet, even though the McLeods, who sold their house to the Nannuccis, had planted the trees decades ago, the trees were clearly on the other side of the fence and the people Hynds bought his land from shared raking duty - both leaves and the large pods the trees dropped - with the McLeods, so nothing adverse was going on there, the trees remained on Hynds's land and he was within his rights to tear them down, Long wrote.
Hynds argued the date of adverse possession should have begun when he bought his land and realized the fence issue, under an ancient state law still on the books, but the judge ruled the law Hynds cited doesn't actually refer to adverse possession
Hynds appealed, citing some witnesses who claimed the fence had gone up less than 20 years before he complained, but the appeals court noted other witnesses had said a fence had been there for at least 20 years, and that, as a judge, Long "was entitled to credit the testimony of some witnesses over others" and so his ruling was not erroneous.