If you believe that your neighbor’s fence is encroaching onto your property and you wish to have it removed, do you have legal recourse?
In Randy C. Brogen v. Julia Lisa Papagno, Trustee of 7 Edwards Road Realty Trust, the Massachusetts Land Court recently addressed such a property dispute involving a fence encroachment. In that case, plaintiff discovered that a fence erected by his neighbor encroached onto his adjacent property by three feet, for a total of encroachment of fourteen- square feet, onto his property. Plaintiff attempted to resolve the issue with his neighbor directly, but was unsuccessful, leading him to file a complaint alleging trespass and seeking removal of the fence. The neighbor denied the trespass arguing, in part, that even if her fence encroached onto plaintiff’s property, it did not constitute trespass because the encroachment was de minimis. The court rejected the neighbor’s argument.
On summary judgment, the court found that the neighbor’s encroachment did not qualify for the de minimis exception, which applies in rare cases where the encroachment is barely perceptible, is difficult to remove, and causes no discernable harm (e.g., encroachments of mere inches). Ultimately, the court ruled in favor of plaintiff by permanently enjoining the neighbor from maintaining the trespass and ordering removal of the fence within 60 days at the neighbor’s sole cost and expense.
Trespass, encroachment, de minimis exception