Trespass

“Massachusetts rule” reaffirmed: no liability if an overhanging tree damages neighboring property

/ Nuisance, Trespass

A Massachusetts court has reaffirmed the “Massachusetts rule” that “an individual whose property is damaged by an overhanging tree has no cause of action against a landowner of the property upon which the tree lies.” Shiel v. Rowell, 2017 WL 3616892 (Mass. App. Div. 2017), citing Ponte v. DaSilva, 446 N.E.2d 77 (Mass. 1983). The court noted the contrary “Hawaii rule” that does make a tree owner financially responsible if her own trees overhangs neighboring property and damages it.

Prescriptive easement denied because longstanding use of neighboring land was presumed to be permissive

/ Adverse Possession, Easements, Real Estate Transactions, Trespass

When one occupies property belonging to a neighbor, most courts presume the occupation is adverse (meaning non-permissive), and this “possession” will ripen into ownership through adverse possession law after the statutory period runs out. Most states use the same presumption for prescriptive easements but a minority presume use is permissive rather than nonpermissive when limited use — rather than full occupation or “possession” — is at issue. In such cases, permissive use will be revocable and not ripen into a prescriptive easement. The Massachusetts Land Court applied the presumption that use if permissive in the absence of statements or actions that show that it is nonpermissive and found no prescriptive easement in the case of DiNino v. Newman, 2016 Mass. LCR LEXIS 179 (Mass. Land Ct. 2016).  The court purported to apply the Massachusetts presumption that use is adverse (nonpermissive) and found that facts overcame that presumption. However, the only facts that …

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Seventh Circuit holds that transgender discrimination is a form of sex discrimination

/ Antidiscrimination Law, Fair Housing Act, Sexual Orientation, Trespass

Applying Title IX of the Education Amendments Act of 1972, 20 U.S.C. §1681, as well as the Equal Protection Clause of the Fourteenth Amendment, a three judge panel of the Seventh Circuit has ruled that a school must allow a transgender boy to use the boy’s bathroom, holding that discrimination on the basis of gender idenitty is a form of sex discrimination. Whitaker v. Kenosha Sch. Dist. No. 1 Bd. of Educ., 2017 U.S. App. LEXIS 9362 (7th Cir. 2017). The court affirmed a preliminary injunction granted by the District Court requiring the school to allow plaintiff access to the restroom that conforms to his gender identity. The court rested on the gender conformity argument because “[b]y definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth” and a “policy that requires an individual to use a bathroom that …

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Legal aid access to farm to aid migrant farmworkers held not to be a trespass

/ Trespass

In a case reminiscent of the well-known case of State v. Shack, , 277 A.2d 369 (N.J. 1971), a federal judge applying Maryland state law has held that lawyers have a right to enter farmland to provide services to migrant farmworkers and that such an entry is not a trespass even if it is against the wishes of the land owner. Rivero v. Montgomery Cnty., 2017 U.S. Dist. LEXIS 67170 (D. Md. 2017). The court noted that the First Amendment “protects individuals’ right to impart information and opinions to citizens at their homes” (citing Schneider v. New Jersey, 308 U.S. 147, 152 (1939) and that state statutes provided that, while one cannot enter cultivated land without the permission of the owner, the law “does not…prevent a person who resides on cultivated land from receiving a person who seeks to provide a lawful service.” Md. Code, Crim. Law §6-406(b), (d)(2)(i).

Adverse possessor has trespass claim against original owner

/ Adverse Possession, Trespass

In Owens v. Buccheri, 2016 Mass. LCR LEXIS 121 (Mass. Land Ct. 2016), the Massachusetts Land Court held that an adverse possessor can sue the original owner of land acquired by adverse possession for trespass when the original owner cuts down trees and excavates on the land. While in some sense an unremarkable holding, it is an object lesson not to engage in self-help on disputed land when the facts are such that one might have lost title to that land by adverse possession. The court also reaffirmed the rule that one can commit a trespass by mistake if entry on the land is voluntary. The court also interpreted a state law allowing for treble damages for removal of trees on someone else’s land to allow damages not only for the value of the timber that was wrongfully cut or the diminution in the fair market value of the land but …

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An owner can obtain property by acquiescence even if the neighboring land is unoccupied

/ Adverse Possession, Title Issues, Trespass

The Utah Supreme Court has held that an owner can obtain property “by acquiescence” if the owner occupies a strip of the neighbor’s land in a visible manner without objection.  Anderson v. Fautin, 2016 UT 22, 379 P.3d 1186 (Utah 2016). Although “acquiescence” suggests that a neighbor is aware of the placement of the border and either agrees or does not object to it, the Court found that the same doctrine should apply even if the neighboring land was not occupied. Holding otherwise would reduce the security that comes from not having the neighbor object to placement of a fence. The doctrine in Utah requires a claimant to satisfy four elements:  (i) occupation up to a visible line marked by monuments, fences, or buildings; (ii) mutual acquiescence in the line as a boundary; (iii) for a period of at least 20 years; (iv) by adjoining landowners. The doctrine is distinguished from adverse …

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Trespass claimant has the burden to prove lack of consent to the entry

/ Trespass

A trespass is a non-privileged entry onto land possessed by another. Privilege can come from several sources including consent of the owner and public policy. In a case of first impression, the Supreme Court of Texas held that the plaintiff in a trespass case bears the burden of proving that entry by the non-owner was non-permissive. Rather than simply proving that the defendant entered the plaintiff’s land, the plaintiff must prove that the entry was a trespass and to do that the plaintiff must show the entry was not done with the consent of the plaintiff owner. Envtl. Processing Systems, L.C. v FPL Farming Ltd., 457 S.W.3d 414 (Tex. 2015).

Legal consequences of the distinction between affirmative easements and restrictive covenants

/ Condominiums and Homeowners Associations, Easements, Real Estate Transactions, Servitudes, Trespass

Massachusetts statutes regulate the enforceability of “covenants” by limiting the circumstances in which they can be enforced, defining when they can be enforced by damages only and not injunctive relief, and subjecting enforcement to a 6 year statute of limitations. Mass. Gen. Laws ch. 184 §23A, §30.  In a recent application of those statutes, the Massachusetts Appeals Court ruled in BP Watertown Retail, LLC v. Home Depot U.S.A., Inc., 2016 WL 513955 (Mass. App. Ct. 2016), that these limitations do not apply to affirmative easements; rather they apply only to restrictive covenants. So when an owner of a store in a shopping center engaged in construction in a shared parking area, eliminating several parking spaces, its actions did not merely violate the restrictions on construction in the parking area but interfered with access to the parking area by other easement beneficiaries who had a right to use the parking lot without …

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Informal border change by acquiescence

/ Adverse Possession, Real Estate Transactions, Statute of Frauds, Trespass

The Utah Supreme Court has affirmed and applied the doctrine of “boundary by acquiescence” under which a border is set informally when neighbors recognize a line between their properties. Q-2 LLC v. Hughes, 368 P.3d 86 (Utah 2016). The court noted that title shifts at the point when the parties act to satisfy the doctrine not when the border is recognized by a court. Establishment of boundary by acquiescence in Utah requires (1) occupation up to a visible line marked by monuments, fences, or buildings; (2) mutual acquiescence in the line as a boundary; (3) for at least 20 years; (4) by adjoining owners. The doctrine differs from adverse possession because it is based on mutual permission rather than adverse occupation (occupation that is non-permissive).

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