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Boundary Disputes and When to Hire a Lawyer: An Interview with Bill Heney of Heney & Associates, LLC

By Bill Heney

Tell us a little about your firm and the areas of law you practice.

Heney & Associates, LLC represents clients in all aspects of commercial and residential real estate matters. Members of the firm have extensive experience in the Massachusetts Land Court, Massachusetts Housing Court, and representing buyers, sellers, and lenders. The firm has experienced full-time legal assistants on staff to assist our attorneys and our clients in their litigation matters relating to title and real estate transactions.

Can you briefly describe what a boundary dispute is?

Boundary disputes are disagreements between neighbors over their rights and duties with respect to adjacent, or nearby, real property owners. These disagreements are as diverse as the neighbors themselves. As a result, there are numerous causes of action and non-court approaches to resolving such disputes. To provide appropriate legal action for resolving the dispute, a skilled attorney will need to understand the whole picture. Here in Massachusetts, we are fortunate to have the Massachusetts Land Court. The Land Court is a division of the Department of the Trial Court. Based in Boston, the Land Court Department has statewide jurisdiction over the registration of title to real property, foreclosure proceedings, and redemption of real estate tax liens. This court shares jurisdiction over matters arising out of decisions by local planning boards and zoning boards of appeal, and over most property matters. The Court also has superintendence authority over the registered land offices in each county's Registry of Deeds.

Boundary disputes may result in one of the following claims:
Adverse Possession: Methods by which land, that has been in the actual possession of another for the Statutory Period, may be legally claimed and then recorded by the possessor.
CC&Rs-Covenants [& Servitudes], Conditions & Restrictions: Methods of privately controlling or limiting the use of real property by creating publicly recorded restrictions in consideration for value (i.e. money).
Easements: Rights to permanently use a neighbor's land without having gained ownership.
License: Revocable rights to the use of a neighbor's land.
Nuisance: Disruption of a neighbor's rights to the peaceful enjoyment of their real property.
Trespass: Unauthorized use of a neighbor's real property.
Zoning: Public restriction or mandate as to the use of land.

What are the most common boundary disputes that you've seen arise in your area?

The most common boundary dispute that our office deals with are adverse possession claims or prevention of an adverse possession claims. Boundary disputes are frequently the result of unclear lot lines. This arises when one party over time encroaches, uses and improves a piece of a neighboring property. Perhaps a fence, driveway, shed, addition or garden has been in place and encroaches on the neighbor's land. An event such as the sale of a property or survey has made the parties aware of the boundary issue, which prompts them to seek out a resolution. For many, mutual easements, lot line agreements or revocable licenses can resolve this type of dispute. Others may need to acquire title through adverse possession. An experienced attorney can review the facts and circumstances to determine if there is a need for court action.

Attorney Henley is an experienced Adverse Possession Attorney and has filed and defended several Adverse Possession Claims in the Massachusetts Land Court. Recently, Attorney Heney was retained by a client with a unique title issue. The client's home was Recorded Land, and the abutting property was Registered Land. The home had clearly met all the requirements of an Adverse Possession claim, however, the owner was pre-empted from filing an Adverse Possession Claim because the subject property was Registered Land (Massachusetts Gen. L. c. 185, §51). (See below for a definition of Adverse Possession and other examples of types of Real Estate not subject to Adverse Possession claims.)

Adverse Possession (Massachusetts)
Adverse Possession is "a method of acquiring complete title to land as against all others, including the record owner, through certain acts over an uninterrupted period of time, as prescribed by statute. It is usually prescribed that such possession must be actual, visible, open, notorious, hostile, under claim of right, definite, continuous [and] exclusive." There are limited examples of real estate that are not subject to Adverse Possession claims.

Statutory Basis
The statutory basis for adverse possession in Massachusetts is Mass. Gen. L. c. 260, §21, which provides for a twenty (20) year statute of limitations to recover possession of land.

Types of Real Estates over which there is no Adverse Possession.
There are certain types of real estates that are not subject to adverse possession claims. Some examples include (i) registered land (Massachusetts Gen. L. c. 185, §51), (ii) state highways (Mass. Gen. L. c. 81, §22), (iii) conservation land owned by non-profit corporations (Mass. Gen. L. c. 260, §21), (iv) land owned by the Commonwealth of Massachusetts and used for conservation or other public purposes (Mass. Gen. L. c. 260, §31), (v) land owned by the United States (United States v. Hato Rey Bldg. Co., 886 F.2d 448 (1st Cir. 1989)), (vi) land owned by railroads (Mass. Gen. L. c. 160, §88), and (vii) public burial grounds (Commonwealth v. Viall, 84 Massachusetts (2 Allen) 512 (1861)).

Preventing Adverse Possession
A petition to register land interrupts or terminates adverse possession. (Snow v. E. L. Dauphinais, Inc., 13 Massachusetts. App. Ct. 330 (1982)). Note that the posting of a notice under Massachusetts. Gen. L. c. 187, §3, which is effective in preventing the acquisition of easements by adverse possession, has been held not to necessarily interrupt the period of adverse possession where the intent is to acquire complete ownership (fee simple) interest (Rothery v. MacDonald, 329 Mass. 238 (1952).

Insurability of Land Acquired Through Adverse Possession
Title which is dependent on adverse possession is not insurable unless and until there is decree or judgment of a court of competent jurisdiction adjudging that the title is vested in the plaintiff. While a proposed insured may make a valid argument that his or her family has been in possession of the locus for the last fifty (50) years, nevertheless, adverse possession does not establish a marketable title.

When is it advisable for someone involved in a boundary or property line dispute to consult a lawyer?

A party should consult with their real estate attorney as soon as they become aware of a boundary dispute. Often times, the dispute is the result of poor communication or misinformation. A good attorney can help reduce the tension by cleaning up the communication and identifying the key factors necessary for a resolution.

Are there any actions that can or should be taken before property owners hire an attorney?

Generally, I ask my clients to locate the file that they got from their closing attorney at the time of purchase or a survey if they have one. If they have had discussions with the neighbor perhaps their neighbor has given them a survey or plan. It is always helpful to know both sides of the boundary dispute.

What advice do you have for homeowners with a neighbor who is wrongly claiming to own part of their property?

If a neighbor is wrongly claiming to own part of your property, you need to address it immediately.

What's the best way for people to contact you and your firm?

William Heney
86 Dodge Street, Route 1A
North Beverly, MA 01915
978-921-1050
bill@heneylaw.com
www.heneylaw.com

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