A neighbor who claims part of your yard by adverse possession or a prescriptive easement has to prove twenty years of continuous use, and a guess about when the use started is not enough. In a March 2024 decision, the Appeals Court affirmed a judgment for a homeowner, rejected the neighbors’ claims to a strip of her side yard, and upheld an order requiring the neighbors to remove a shed, a concrete pad and other encroachments. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
The homeowner and her neighbors own side by side lots in Dracut. In 2019 the homeowner sued the neighbors in the Superior Court for trespass and asked the court to order them off her land. The neighbors counterclaimed for adverse possession of a side yard strip near the boundary and for a prescriptive easement over part of her property. After a jury-waived trial that included a view of both properties, the judge located the boundary, found that a shed, a concrete pad, a lamppost, stairs and a pipe crossed onto the homeowner’s land, and ordered them removed. The judge also ruled against the neighbors on their counterclaims.
What the court decided
In Gacek v. Foley, No. 23-P-532 (Mass. App. Ct. March 25, 2024) (Rule 23.0 decision), the Appeals Court affirmed the judgment.
The boundary. Where a boundary line is in dispute, its location is a question of fact decided on all the evidence, including deeds, surveys and plans. Bernier v. Fredette, 85 Mass. App. Ct. 265 (2014). The judge’s line tracked every deed in the neighbors’ chain of title since 1970 and three later plot plans. The neighbors’ expert offered a different line based on an old fence post, but the judge was free to give that opinion little weight, and the court found no clear error.
Removing the encroachments. A landowner who proves an encroachment is ordinarily entitled to an order compelling its removal. Brandao v. DoCanto, 80 Mass. App. Ct. 151 (2011). Courts refuse removal only in rare cases, for example where the encroachment is trivial or the cost of removal is greatly out of proportion to the harm. The encroachments here ranged from 1.4 to 4.5 feet, larger than ones courts have called trivial, and the neighbors offered no evidence about the cost or hardship of removal. The removal order stood.
Adverse possession and prescriptive easement. Title by adverse possession requires nonpermissive use that is actual, open, notorious, exclusive and adverse for twenty years. Kendall v. Selvaggio, 413 Mass. 619 (1992). A prescriptive easement requires clear proof of open, notorious, adverse and continuous use for at least twenty years. Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 (2007). The claimant carries the burden on every element.
The clock mattered. In April 2018 the homeowner had a notice served on the neighbors under G.L. c. 187, § 3, stating her intention to prevent them from acquiring rights in her land, and in March 2019 she had a no-trespass letter served. The judge found that by March 2019 she had protected her rights. So the neighbors had to show continuous use starting twenty years before that date. Their only witness on timing could say only that his guess was close to twenty years, and recalled the work being done around 1998 or 1999. No documents confirmed those dates, and the judge did not have to give the neighbors the benefit of the doubt. Even assuming every other element was met, the claims failed on time.
What this means for you
If you are the owner, you have tools to stop the clock. A notice under G.L. c. 187, § 3, served on a neighbor the way a summons is served, can prevent that neighbor from gaining an easement by use from then on. In this case, the notice and a no-trespass letter fixed the date the neighbors had to measure back from.
If you are the neighbor making the claim, memory alone is risky. Courts want proof of when the use began. Receipts, permits, dated photos and surveys can carry a twenty-year claim. A recollection that it was “close” may not.
Encroachments of a few feet are not minor in the eyes of the law. Expect a court to order a shed, slab or set of stairs moved unless you can show removal would be truly unfair, and bring evidence of cost if you plan to argue that.
What to do now
- Get your deed, your neighbor’s deed and any recorded plans from the Registry of Deeds, and consider a survey if the line is in doubt.
- If a neighbor is using part of your land, write down what you see with dates and photos, and ask a lawyer about serving a notice under G.L. c. 187, § 3.
- If you believe you have used land for twenty years or more, gather every dated record that shows when the use started.
- Do not remove or alter boundary markers or fences once a dispute begins without legal advice.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. These cases move on short deadlines.
