MIQUEL BRANDAO and DULCE BRANDAO v. DRISCOLL DOCANTO, RENDA MILLSAP, Individually and As The Trustees of the 16 MAGAZINE STREET CONDOMINIUM TRUST

Plaintiffs Miquel Brandao and Dulce Brandao commenced this action in this court on June 5, 2006 against defendants Driscoll Docanto, Renda Millsap, and the Trustees of the 16 Magazine Street Condominium Trust, alleging that the defendants’ building encroaches on the plaintiffs’ land and constitutes a trespass. The Brandaos, as tenants by the entirety, own of record a parcel of improved land (“Brandao Property”) located at 28 Dunmore Street in Boston, Massachusetts, which abuts the property of the defendants, located at 16 Magazine Street, Boston, Massachusetts. The Brandaos were the grantees in a deed, dated October 10, 1980, to them recorded with the Suffolk County Registry of Deeds (“Registry”) in Book 9612, Page 220.

The defendants each own of record one unit of the condominium to which the property at 16 Magazine Street has been devoted pursuant to a master deed (“Master Deed”), dated December 16, 2005 and recorded with the Registry at Book 38702, Page 25. Millsap owns Unit 1 at the 16 Magazine Street Condominium pursuant to a deed recorded with the Registry at Book 38702, Page 156, given by Docanto as grantor. Docanto is the developer of the property, having acquired the property at 16 Magazine Street as unimproved land by deed from his father recorded at the Registry in Book 34212, Page 5.

This case came on to be tried to the court (Piper, J.). At the conclusion of trial, and after submission of legal memoranda and argument by counsel, the court, based on all the evidence, has made from the bench findings of fact and rulings of law which, as laid upon the record, transcribed, and filed, constitute the court’s March 31, 2008 decision in this case (“March 31 Decision”). Following the March 31 Decision, this case came on for further evidentiary hearing before the court (Piper, J.) which, in a written decision of even date, has made further findings of fact and rulings of law. In accordance with the court’s decisions, it is

ORDERED, ADJUDGED and DECLARED that the boundary line between the land of the plaintiffs at 28 Dunmore Street, and that of the defendants at 16 Magazine Street (“Boundary Line”), as described in the March 31 Decision, runs from the “street side terminus of the new fence” at Dunmore Street, to the “fencepost still standing, . . . to the east and right” of the utility pole at the northernmost corner of 16 Magazine Street, the plaintiffs having proved title by adverse possession to so much of their land as they did not already hold by virtue of their record title. It is further

ORDERED, ADJUDGED and DECLARED that the Boundary Line is as depicted as a dashed line on a plan titled “Plan of Land in Boston, MA, Between 16 Magazine Street & 28 Dunmore Street, Prepared for Driscoll Docanto” by The Decelle Group, dated May 2, 2008, (the “May, 2008 Plan”) which is in the trial record as Exhibit 126. It is further

ORDERED that within sixty days of this Judgment becoming final, Docanto, at his sole cost, shall have prepared by a licensed engineer or surveyor, in a form suitable for recording, the May, 2008 Plan, which plan, in its recordable form, shall be in all substantive ways (including in its depiction of the Boundary Line) the same as the May, 2008 Plan, and which recordable plan shall, within the same time, at Defendants’ cost, be recorded at the Registry with this Judgment, or a certified copy of it. This Judgment, and the recordable plan accompanying it to record, shall be referenced marginally on the records of each of the deeds establishing record title in the plaintiffs, the defendants, and of the Master Deed. It is further

ORDERED that within ten days after compliance with the provisions of the preceding paragraph of this Judgment, Docanto shall file with the court, and serve on all parties, a written report certifying and demonstrating that compliance, the report to be accompanied by a true copy of the recordable plan as recorded. It is further

ORDERED and ADJUDGED that the new chainlink fence, and the other portions of the building and improvements at 16 Magazine Street (including, without limitation, the dwelling house, the foundations, the porches, the decks, and stairs, and all associated wire, utilities and other appurtenances) which extend over the Boundary Line onto the land of the plaintiffs, encroach without right onto the property of the Brandaos at 28 Dunmore Street, and constitute a trespass. It is further

ORDERED and ADJUDGED that no later than twelve (12) months from the date this Judgment becomes final, the defendants, at their sole risk and expense, shall cause all encroachments which defendants have placed or caused or suffered to be placed or maintained in or upon the Brandao property and which extend onto it over the Boundary Line (as established in this Judgment), to be demolished or otherwise to be removed from, or relocated off of, the Brandao property. The work shall be carried out in good and workmanlike manner; by licensed and qualified contractors and other professionals; in accordance with all governing laws and regulations; after having secured all necessary permits and approvals; with liability insurance in place in reasonable and customary amounts and coverages protecting the interests of all parties to this litigation, including the plaintiffs; and shall include restoration of the real property of the plaintiffs to substantially its condition prior to placement of the encroachments. It is further

ORDERED and ADJUDGED that defendant Docanto, individually, defendant Millsap, individually, and the defendant condominium trustees shall negotiate in good faith to arrive without undue delay at a binding written agreement concerning the manner and method by which the work ordered in the preceding paragraph of this Judgment shall be carried out, and thereafter shall carry out that work in accordance with that agreement. It is further

ORDERED and ADJUDGED that the defendant Docanto, individually, shall indemnify and hold harmless defendant Millsap and the defendant condominium trustees (collectively, the “Indemnified Defendants”) from and against all costs and liabilities of, or arising from, the performance of the encroachment removal work ordered by this Judgment. Without limiting the generality of the preceding sentence, the defendant Docanto, individually, shall pay to the defendant Millsap, not later than thirty days after receipt of written demand therefor, in good funds, her actual, reasonable third-party costs and expenses incurred and paid by her in connection with and arising out of the performance of the encroachment removal work ordered by this Judgment, including, without limitation, costs and expenses for substitute housing and associated moving and storage expenses. It is further

ORDERED and ADJUDGED that plaintiffs recover of the defendants, jointly and severally, nominal damages in the amount of One Hundred Dollars ($100.00). It is further

ORDERED and ADJUDGED that, except as expressly set forth in this Judgment, no damages, costs, fees, or other amounts are awarded to any party.

By the Court. (Piper, J.)