Cases in Real Estate
is a weekly update on real estate law, with legal principles illustrated and
explained by lawsuits from around the country. The topics are wide-ranging for
appeal to a broad spectrum of readers including lawyers, homeowners, investors
and the general public. Andrea Lee Negroni, a Washington DC
attorney and legal writer with 25 years of experience in financial services and
mortgage law, contributes the case summaries.
Real Cases in Real Estate will learn and be entertained by lawsuits
involving nuisance, trespass, zoning violations, deed restrictions, title
insurance, public utilities, mechanics liens, construction defects, adverse
possession, foreclosure and eviction, divorce and marital property rights,
tenants' rights, and more. Real Cases in Real Estate uncovers the
unpredictable, amusing, and sometimes outrageous disputes between next-door
neighbors, contractors and homeowners, condo boards and residents, real estate
brokers and homebuyers, and zoning administrators and developers.
cited case summary highlights the essential law of the case and explains the
principal legal theories and concepts relevant to the outcome. Plain language
treatment makes Real Cases in Real Estate accessible to lawyers and
follow real estate law professionally or as a hobby, you'll find something new
and useful every week in Real Cases in Real Estate.
for the Week of September 10th, 2012
A Neighbor Used Parts of Her Neighbor's Yard, Then
Claimed Title by Adverse Possession.
The Griffins owned a single lot in Brookline,
Massachusetts which they subdivided in 1962, resulting in a front lot and a
rear lot. There were two homes on the lot before the subdivision. The boundary
drawn in connection with the subdivision resulted in two conforming lots, one
behind the other. The front lot had a 30-foot rear yard and the rear lot had a
20-foot front yard. Both setbacks were the minimum required to make the two
lots conforming. Easements on the sides of the lots permitted the two
homeowners to access the street and their yards. The Griffins eventually sold
the two homes. Both new owners planted trees, plants and flowers in their
yards, but not necessarily along the lot line. One owner also planted an iron
trellis with concrete footings. The neighbors became close friends.
The neighbors, Angela Shashoua in the rear home and Karen
Zien in the front home, eventually came to disagreement about the property's
boundary lines, with Shashoua claiming a part of Zien's lot by adverse
possession. Shashoua based her claim on the plantings she made during a period
of 20 years, the fact she raked her front yard (Zien's rear yard) to smooth out
the bumps in the land, and the fact her sprinkler system may have been
installed under or watered the Zien yard. Shashoua also erected a tent in her
front yard for her son's bar mitvahs, allowed her dogs to wander onto Zien's
property and had construction materials placed on Zien's property.
The judge concluded that none of these actions supported an
adverse possession claim, because they were sporadic acts, more akin to
neighborly accommodation than anything else. Eventually, Shashoua had her front
yard re-landscaped, but not before agreeing with Zien that the landscaping work
would not change the boundaries in existence at the time. Shashoua's
landscaping ultimately included a stone patio, fish pond, new underground
sprinkler system and new soil.
The case provides good instruction in the principles of title by adverse possession, which can
be "acquired only by proof of non-permissive use which is actual, open,
notorious, exclusive and adverse for 20 years."
Because Shashoua and Zien were good friends before their dispute about
the boundary, the judge found Shashoua's use was not non-permissive. Indeed,
the judge noted the two friends enjoyed gardening and had gardened together in
the yard for years. The permanent nature of the 2004 landscaping improvements
might have been Shashoua's best claim
for adverse possession, but they were not in place for 20 years when the
lawsuit arose. Shashoua lost her claim for adverse possession, with the judge
holding that Zien could even require her to remove the permanent landscape improvements.
Shashoua v. Zien,
2011 Mass. LCR LEXIS 114 (Massachusetts Land Court, Sept. 29, 2011) [enhanced version available to lexis.com subscribers].
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