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.
