951 N.E.2d 979
Mass. App. Ct.2011Background
- Plaintiffs Miquel and Dulce Brandao and defendants DoCanto and Millsap own adjacent parcels in Roxbury, Boston; Brandao couple has inhabited their property since 1980.
- DoCanto acquired the Magazine Street property in 2004 and built a two-unit condominium, later selling one unit to Millsap in 2005.
- Plaintiffs allege portions of the new condominium and a chain-link fence encroach on their land; they seek removal of the encroachment.
- Land Court found for plaintiffs, ordering removal of encroachment including part of the condominium, with Millsap indemnified for removal costs.
- Original fence predated 1980 and separated the two parcels; DoCanto dismantled the fence in 2004 to build the condo; the court found plaintiffs used land up to the original fence continuously for about 24 years.
- Judge determined the line of the original fence marks the boundary and that plaintiffs acquired land up to that point by adverse possession; encroachment measured 188 square feet in total, with a triangular encroachment of 14 square feet and maximum building encroachment of 13.2 inches.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the condo encroaches on Brandao land. | Brandao contends the condo encroaches beyond the boundary. | DoCanto argues no encroachment or boundary error. | Yes, encroachment established and boundary found by adverse possession. |
| Whether plaintiffs acquired title via adverse possession. | Brandao shows actual, open, notorious, exclusive use for 24 years. | DoCanto contests exclusive use and duration. | Elements of adverse possession satisfied; plaintiffs acquired title to disputed area. |
| Whether removal of the encroaching structure is an appropriate remedy. | Removal is warranted to protect property rights; monetary damages are insufficient. | Monetary damages should be adequate instead of removal. | Removal awarded; equitable relief appropriate under the circumstances. |
| Whether Millsap is liable for removal costs despite innocent acquisition of unit. | Millsap indemnified for removal costs; liability not exonerated. | Millsap not culpable; should not bear removal burden. | Millsap indemnity does not offset obligation to remove encroachment. |
Key Cases Cited
- Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627 (Mass. 2010) (review of factual findings and standard for appellate deference to judge’s factual determinations)
- Kendall v. Selvaggio, 413 Mass. 619 (Mass. 1992) (clear-error standard for reviewing factual findings; plausibility of judge’s account)
- Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501 (Mass. 1997) (merits of weighing conflicting evidence; credibility of experts)
- Peters v. Archambault, 361 Mass. 91 (Mass. 1972) (removal of encroachment as a generally available equitable remedy)
- Goulding v. Cook, 422 Mass. 276 (Mass. 1996) (limits and considerations for equitable relief and removal in encroachment cases)