Resolving Encroachment Issues

By Merle Hass, Esq.

A recent case our firm successfully resolved involved a dispute with a neighbor of one of our condominium clients.  Our client noticed that the neighbor had paved an area for a patio, set down several large storage containers, and built a big shed for gravel and sand.  After having a surveyor confirm that the shed and other structures were on Association land, the Board asked us for advice.

We sent the neighbor a letter demanding that he restore the land. His response was that he had acquired the right to the land by virtue of the doctrine of adverse possession. This doctrine states in essence that “the open, notorious, continuous, exclusive, and adverse use of land, for 20 years, by an owner (including its predecessors in title), can deprive the rightful owner of title to the land and vest the encroacher with title.”

We filed suit in theLand Court, seeking a declaration that the Association owned the disputed land, as well as an Order that the Defendant (neighbor) leave the land and restore it. The Defendant had owned his home on adjacent land for a little less than 20 years when we filed suit. We were repeatedly told that the Defendant had a witness who was planning to testify that for well over 20 years, the land at issue had been used in the same way.  We agreed to depose the witness.

Before the deposition, in the course of my preparation, I searched the Registry of Deeds to locate the individual from whom the Defendant had purchased his land.  I contacted him and learned that the encroachments we complained of had not been on the land when he sold it to the Defendant. Following the deposition of the Defendant’s  witness, I presented opposing counsel with the affidavit of the former owner. Counsel immediately recognized that his case had just collapsed.

Shortly afterwards, the Land Court Judge entered a Judgment in our favor. This was a great outcome for our client not only because we won, but because we did so without having to go through the expense of a single evidentiary hearing.

File under:  Careful where you encroach, because you may land on the wrong side of the law.

We are pleased to offer legal advice for land use or other condominium association matters .  Please feel free to contact us here