MISC 130053

December 14, 1992

Suffolk, ss.



By complaint filed on October 12, 1988, Plaintiff seeks a mandatory injunction ordering the removal of portion of a wall of a one-story building, which encroaches on a parcel of registered land owned by Plaintiff, located at 214-228 Hanover street in Boston ("Locus") as well as damages and costs.

As part of a Joint Pre-Trial Memorandum filed on May 8, 1991, the parties filed a Statement of Agreed Facts.

This case was tried on October 11, 1991, at which time the proceedings were transcribed by a court-appointed reporter. Four witnesses testified and nine exhibits were introduced into evidence. All of the exhibits and the Agreed Statement of Facts are incorporated herein by reference for the purpose of any appeal. Both Plaintiff and Defendant filed Post-Trial Memoranda. Locus was viewed immediately after trial and on one subsequent occasion.

After considering the evidence, testimony and pertinent documents, I make the following findings of fact:

1. Anthony F. Capodilupo, as Trustee of 214 to 228 Hanover street Realty Trust is the owner of Locus, an 11,878 square foot parcel of registered land in Boston, shown on Land Court Plan Number 4944-A ("the Plan") and described in Certificate of Title Number 6490, dated April 15, 1987.

2. In 1985 or 1986, Defendant took title to a parcel of land with the buildings thereon located at 7 North Hanover Court ("Defendant's Parcel") in Boston. Defendant's Parcel abuts Locus at a point at the rear of Locus. Defendant's Parcel is shown on the Plan as "Now or Formerly of Rand, Wooden Shed."

3. At present, there is, on Defendant's Parcel, a one-story brick structure ("the Structure"), the southerly wall of which is 23.77 feet in length and encroaches on Locus in a taper beginning at the North Hanover court corner where there is no encroachment, thence tapering to an encroachment of .3 feet at the westerly corner. The westerly wall is 8.38 feet in length and has a constant encroachment on Locus of .4 feet, all as shown on a plan, entitled "Plan of Land, Boston, Mass." dated April 7, 1987 (Exhibit Number 7). The structure was constructed sometime after the registration of Locus in 1914 by persons and at times unknown. The one-story 23.77 foot by 8.38 foot structure appears to be an integral portion of an older four-story wooden building adjacent to the northerly side of the structure (the structure is between Locus and the wooden building). It would appear that the brick walls of the structure, could be a brick veneer covering the original wooden structure shown on the original plan, although there is no evidence of this, save appearance.

The Supreme Judicial court has held that a landowner in Massachusetts is ordinarily entitled to mandatory equitable relief to compel removal of a structure significantly encroaching on his land. Peters v. Archambault, 361 Mass. 91 , 92 (1972); Goldstein v. Beal, 317 Mass. 750 (1945), both of which involve registered land; and Geragosian v. Union Realty Co., 289 Mass. 104 , 108-110 (1935), where the land was not registered. In some instances, 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. Peters at 93; Ottavia v. Savarese, 338 Mass. 330 , 336 (1959). Such exceptions, however, have never been applied to registered land.

In Peters, supra, the Court recognized that registered land is protected to a greater extent than other land from "unrecorded and unregistered liens, prescriptive rights, encumbrances and other burdens," Peters at 93; G.L. c. 185, §§l (e), 46, 47, 53, 57, 58, 77 and 112, and held that to recognize an encumbrance created by an encroachment would tend "to defeat the purpose of the land registration act." Id. at 94; Goldstein at 759; Abdulla v. Nabhan, 5 Mass. App. Ct. 775 (1977).

The Goldstein Court further held that an encumbrance can be acquired only if it is disclosed on the certificate of title to the lot in question. Goldstein at 758. In the present case, no such disclosure was made and the encroaching portion of the Structure cannot be allowed to remain on Locus. Unlike the situation where Plaintiff has actual notice of an unrecorded easement, Killiam v. March, 316 Mass. 646 (1944) or where an easement is inadvertently omitted from a certificate of title Feldman v. Souza 27 Mass. App. Ct. 1142 (1989), this is an instance in which Plaintiff had no opportunity to gain knowledge of the encroachments created after registration, but prior to his purchase of Locus, without having an accurate survey made. To subject all registered land to such requirement would also defeat the purpose of the registration act. Even the well-reasoned dissent in Peters arguing against removal of an encroachment on registered land, had difficulty with G.L. c. 185, suggesting as a solution that, were an encroachment to remain, the parties could voluntarily relocate their boundary lines and reform the certificates of title. Peters at 104. While this is certainly a solution, if acceptable to both parties -- such solution is at best an option the parties herein have rejected.

While both the Peters and Goldstein Courts found the pertinent encroachments to be substantial and not de minimus, the reasoning of both courts would not appear to require a substantial encroachment for such relief.

It appears to be undisputed that a court cannot make a plaintiff's lot subservient to rights in a defendant's lot; no court has suchpower to alter registered titles. Goldstein at 758- 9; Peters at 102.

In determining whether an encroachment is de minimus or not, the nature of the subject and surrounding properties must be considered. Locus is not open land in a rural countryside; rather it is a highly built-up area of downtown Boston, and while the encroachment may not appear to be substantial, it is certainly, considering the area, more than de minimus. I note that, Section D (l) of The Land Court Manual for the Survey and Preparation of Plans to be filed in the Land Court requires a precision ratio of 1:15,000 or better, and the encroachment in the present case is substantially larger than one allowed through precision error by said Manual.

In summary, I find that Plaintiff holds title free from all encumbrances except those noted on his certificate of title, and Defendant is hereby ordered to commence removal of the encroaching portion of the Structure, described above, within 90 days from the final disposition in this matter and to proceed diligently thereafter until complete. Such requirement is predicated, however, on Plaintiff allowing Defendant reasonable access to the encroaching walls, during reasonable working hours for the purpose of removing the encroachment and making whatever structural changes to the structure may be reasonably required by such removal.

Judgment accordingly.


[Note 1] Apparently the named Plaintiff in this matter is not the owner of the property in dispute herein, Locus belonging to another trust. Accordingly, I will give Plaintiff 30 days after the date of this Decision to move to Amend his Complaint.

[Note 2] On October 15, 1990, Defendant filed a Third-Party Complaint against Vining Disposal Service, Inc. for indemnity as to an incident involving damage to the wall of a structure belonging to Plaintiff. As such an incident was not specifically alleged in the Plaintiff's Complaint, proven at trial, nor argued in Post-Trial Memoranda, I hereby dismiss said Third-Party Complaint.