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Mr. Jones and Mr. Brown live in a neighborhood of exceedingly expensive homes. To ensure that the side lawn of his home retains its golf course like appearance, Mr. Jones installs an underground sprinkler system. His neighbor, Mr. Brown, who has less of a green thumb, likes this very much because the sprinklers throw a good deal of water onto his adjoining property, turning his yard into a lush paradise. Good spirits prevail for a number of years until Mr. Brown discovers, through a routine survey, that Mr. Jones’ sprinklers and some of their underground pipes encroach on Mr. Brown’s side of the property line. They extend about two feet into the Brown property over a distance of about 100 feet.
Recognizing an opportunity, Mr. Brown informs Mr. Jones of the problem and suggests that Mr. Jones purchase the 200 square foot strip for $200,000. Otherwise, Mr. Brown says, he will be forced to seek a court order mandating removal of the encroaching sprinklers. Mr. Jones does not respond, instead selling his property to Mr. Green, who purchases with knowledge of the sprinkler dispute. Mr. Green declines Mr. Brown’s kind offer, regarding it as little short of extortion and expressing the opinion that the encroachment is so minimal that a court would never order the sprinklers removed. Mr. Green notes that the sprinklers do not interfere with Mr. Brown’s use of his property, that their removal would be quite expensive for Mr. Green and that Mr. Jones installed them innocently, without knowledge of the encroachment. As appealing as Mr. Green’s argument might sound, he is almost certainly wrong and a court will most likely order the offending sprinklers removed.
The general rule requiring removal of encroachments.
Massachusetts courts have made clear that the general rule, to be applied in all but the most extraordinary circumstances, is that any unlawful encroachment on the property of another must be removed, even if the encroachment is small, does little harm to the landowner and its removal would be costly. In Wilkins v. Pesek, 2008 WL 80217 (Mass. Land Ct. 1/9/08), where there was an encroaching fence, the Land Court stated:
Under Massachusetts law, it is rare-exceptional, really-for a party who is maintaining an encroachment upon the land of another not to be ordered to remove the encroachment. Indeed, a landowner is usually entitled to equitable relief to compel the removal of structures encroaching on his or her land, even if the encroachment is unintentional and the cost of removing the structure is substantial compared to the injury suffered by the lot owner…. It is well settled that the law disfavors disturbing or diminishing the record title to land, and favors compelling the removal of structures encroaching upon another’s property. [The courts] have been loath not to [order removal of encroachments], even though the plaintiff may have suffered little or no damage on account of the offending building or structure, or the costs of removing the encroachment is greatly disproportionate to the benefits to the plaintiff resulting from its removal….
Id. at *8. See also Peters v. Archambault, 361 Mass. 91, 92 (1972); Cormay v. Bain, 2005 WL 715706, *3 (Mass. Land Ct. 3/30/05); Russo v. Gulla, 2002 WL 1805420, *2 (Mass. Super. 8/6/02); Pave v. Mills, 1999 WL 791952, *7 (Mass. Super. 6/30/99). Thus, in most cases, the fact that the encroachment has a minor impact on the landowner, but its removal would saddle the other party with considerable expense, is “without legal consequence” because the court will not exercise its equitable power to “violate a legal principle.” Feinzig v. Ficksman, 42 Mass. App. Ct. 113 (1997). See also Calci v. Reitano, 66 Mass. App. Ct. 245 (2006).
In Goulding v. Cook, 422 Mass. 276 (1996), the Supreme Judicial Court explained that the rule requiring removal of even small encroachments is necessary to protect private property rights.
It is commonplace today that property rights are not absolute, and that the law may condition their use and enjoyment so that the interests of the public in general or some smaller segment of the public, perhaps just immediate neighbors, are not unduly prejudiced…. But except in ‘exceptional’ cases, we draw the line at permanent physical occupation amounting to a transfer of a traditional estate in land…. [W]e are committed to maintaining [that line] because the concept of private property represents a moral and political commitment that a pervasive disposition to balance away could utterly destroy.
422 Mass. at 277-78. Citing Goulding, the Court in Pave held that,
even if the defendants can show that their encroachment was made innocently and the cost of removal would be greatly disproportionate to the injury to the plaintiffs from its continuation, our law does not sanction this type of private eminent domain…. The fundamental aspect of ownership is that the owner of a thing has the right to prevent others from taking it from him, even if the takers are willing to pay damages.
1999 WL 791952, *8.
Exceptions to the general rule.
While the general rule requiring removal of encroachments is subject to very limited equitable exceptions, those exceptions would not help Mr. Green maintain his encroachment on Mr. Brown’s property. In Goulding, the Supreme Judicial Court said:
In rare cases, referred to in our decisions as ‘exceptional’ courts of equity have refused to grant a mandatory injunction and have left the plaintiff to his remedy of damages, ‘where the unlawful encroachment has been made innocently, and the cost of removal by the defendant would be greatly disproportionate to the injury to the plaintiff from its continuation, or where the substantial rights of the owner may be protected without recourse to an injunction, or where an injunction would be oppressive and inequitable. But these are the exceptions…. What is just and equitable in cases of this sort depends very much on the particular facts and circumstances disclosed.’
422 Mass. at 277 n. 3, quoting Peters, 361 Mass. at 93. The Goulding Court also stated:
Like most propositions in the law the one we reaffirm now has some play at the margins. Accordingly, the Appeals Court is quite right that the courts will not enjoin truly minimal encroachments, especially when the burden on a defendant would be very great. The classic example is given in Restatement (Second) of Torts § 941 comment c, supra at 583:
“The defendant has recently completed a twenty-story office building on his lot. The work was done by reputable engineers and builders, and they and the defendant all acted in good faith and with reasonable care. It is, however, found that from the tenth floor upward the wall on the plaintiff’s side bulges outward and extends over the line. The extent of the encroachment varies at different points, the maximum being four inches.”
Such accommodation recognizes the necessarily approximate nature of all legal lines and principles.
422 Mass. at 279-80.
Thus, an exception may apply when “the unlawful encroachment has been made innocently, and the cost of removal by the defendant would be greatly disproportionate to the injury to the plaintiff from its continuation.” Goulding, 422 Mass. at 277 n. 3. Neither condition is satisfied by Mr. Green. First, although the encroachment may have been innocent when made, in the sense that Mr. Jones, who installed the pipes, did not know they encroached on the Brown property, the current owner of the encroaching sprinklers, Mr. Green, purchased his property with knowledge of the encroachment. In Latka v. Nielsen, 2009 WL 4894356 (Mass. Super. 11/23/09), the Superior Court held that a party could not take advantage of the innocent encroachment exception, stating,
Even if the defendants’ predecessor-in-title had made an innocent mistake when she installed the septic system, the defendants in this case cannot claim the benefit of this very narrow exception when they admit that they knew of the encroachment before they purchased their home, and yet went forward with the closing despite having failed to negotiate an expansion of the easement with the plaintiffs. In essence, they bought their home with advance notice that they might also be inheriting a lawsuit.
Id. at *2 n. 5.
Nor is the cost to Mr. Green of relocating his sprinklers grossly disproportionate to the injury Mr. Brown would suffer if the use of the sprinklers were to continue. The cost of relocating the sprinkler system is likely to be very small compared to the great value of Mr. Green’s property. In addition, to the extent the presence of the sprinklers prevents Mr. Brown from utilizing the 200 foot strip (e.g. planting trees or installing other landscaping), the burden on Mr. Brown of maintaining the sprinklers may be significant. Mr. Green would argue to the contrary that the burden on Mr. Brown is minimal in comparison with the size and value of Mr. Brown’s property.
The second exception to the general rule requiring removal applies when the encroachment is “truly minimal” and the “burden on [the] defendant would be very great.” Goulding, 422 Mass. at 279-80. Here, the encroachment clearly is not de minimis. Massachusetts cases establish that in order to qualify for the de minimis exception, the encroachment must be extremely small. In Feinzig, the Appeals Court gave examples of the types of encroachment which would be considered de minimis.
What is truly minimal is not subject to a litmus test, but examples are: Tramonte v. Colarusso, 256 Mass. 299, 300, 152 N.E. 90 (1926) (bulge of a building over the line by one-eighth to one-quarter of an inch); Loughlin v. Wright Machine Co., 273 Mass. 310, 315-316, 173 N.E. 534 (1930) (sewer pipes under six inch strip of land); Triulzi v. Costa, 296 Mass. 24, 28, 4 N.E.2d 617 (1936) (a few bricks imbedded in defendant’s wall projected a few inches into plaintiff’s wall); Restatement (Second) of Torts § 941 comment c, at 583-584 (1979) (bulge over the line to a maximum of four inches above tenth floor of a building).
42 Mass. App. Ct. at 117-18. The Feinzig Court held that an encroachment of up to seven feet in width which covered 195 square feet of the owner’s side yard, was not de minimis. Id. See also Calci, 66 Mass. App. Ct. 245 (encroachment of second story porch and utilities was not de minimis); Latka, 2009 WL 48943556, *3 (encroachment not de minimis where defendant’s leach pits extended beyond the boundaries of an easement by feet, not inches); Wilkins, 2008 WL 80217, *8-9 (encroachment not de minimis where “we have an encroachment, in a densely settled city neighborhood, over a valuable 127 foot long strip of residential land, which is up to one foot in depth.”); Cormay, 2005 WL 715706, *3 (encroachment of 0.2 feet for a distance of 100 feet was not de minimis, noting that defendant had not shown that removal of the fence would be a hardship, that it was installed innocently, or that removal would be an oppressive result.); Russo, 2002 WL 1805420, *3 (well, located between 6” and 14.75” from property line, was significant, not de minimis encroachment. Court noted that removal would not be a great burden on the defendant and would not imperil any structure on the property); Pave, 1999 WL 791952, *8 (encroachment of 360 square feet, by wall which extended between 7.5” and 18” into plaintiff’s property was not de minimis. Court noted that the encroachment equaled 7.5% of the net livable/sellable space).[1]
As the foregoing illustrates, a court is likely to order Mr. Green to relocate his sprinklers. His case does not present the kind of exceptional circumstances which justify a deviation from the general rule requiring removal of encroachments. The encroachment is not de minimis, its removal would not impose a disproportionate burden on Mr. Green, and removal would not jeopardize the structural stability of Mr. Green’s home. Perhaps Mr. Green should reconsider Mr. Brown’s offer.
Endnotes
[1] See Pave, 1999 WL 791952, *8, quoting Capodilupo v. Vozzella, 46 Mass. App. Ct. 224 (1999) (encroachment held to be de minimis and allowed to remain where “two brick corner walls … encroached upon an 11,878 square foot parcel belonging to the plaintiff. The first wall, 23.77 feet long, encroached increasingly in taper from zero to 3.6 inches; the second, 8.38 feet long, consistently encroached 4.8 inches. The encroachments burdened a small open courtyard which the plaintiff uses to store trash. The plaintiff made no argument that the encroachment denied him in any way the beneficial use of his land. Further, the uncontroverted evidence at trial was that removal of these walls would render the defendant’s building unsafe.”).
