DAVID R. GEIGER, Plaintiff v. NEEDHAM MILLER, LLC, Defendant

Plaintiff David R. Geiger ("Mr. Geiger") commenced this action on July 15, 2020 seeking an adjudication that he had obtained title to an approximately 270 square foot area of his neighbor Needham Miller, LLC's ("the LLC") property ("the Disputed Area") by adverse possession. With the filing of his complaint, Mr. Geiger filed motions for a preliminary injunction to prevent the LLC from further disturbing the Disputed Area and for endorsement of a memorandum of lis pendens. On August 3, 2020, this court issued an order denying Mr. Geiger's motion for a preliminary injunction on the grounds that he had failed to establish a likelihood of success on the merits, but allowing Mr. Geiger's motion for endorsement of a memorandum of lis pendens limited to the Disputed Area, not the entirety of the LLC's lot. A hand drawn sketch by Mr. Geiger ("the Sketch Plan") served to satisfy the G.L. c. 184, § 15 requirement of "a description of the real property sufficiently accurate for identification."

The LLC has now filed Needham Miller LLC's Motion To Substitute Plan For Lis Pendens in order to carve out the Disputed Area from the balance of its lot so that it can convey clear and marketable title to the lot and the new home constructed by the LLC thereon. The LLC has attached to its motion a progress print of a plan entitled "Plan Of Land 16 Tanglewood Road Newton [sic], Massachusetts Scale: 1" = 20' September 22, 2020 Dellorco Associates Land Surveyors - Civil Engineers 214 East Street, Foxborough, Ma. 02035" ("the Plan"). Mr. Geiger opposes that motion on the grounds that (1) there is no evidentiary foundation for the Plan, (2) it does not exactly replicate the Sketch Plan, (3) the LLC waited two weeks after the preparation of the Plan to solicit Mr. Geiger's views on it, (4) the LLC declined Mr. Geiger's request that he be allowed time (approximately one week) to review and provide his views on the Plan, (5) the LLC had no valid basis for declining this request, and (6) in undertaking work within the Disputed Area that led to the filing of this litigation, the LLC "knowingly spoliated relevant evidence" before retaining its surveyor to create the Plan, with the result that it should be precluded from introducing its own evidence regarding the contours of the Disputed Area.

For purposes of G.L. c. 184, §15, the Plan is intended to identify the real property that is the subject of this litigation so that someone examining the records at the registry of deeds will be put on notice of the litigation and the property involved in it. According to the LLC, the Plan is also necessary in order that it can proceed with separating the Disputed Area from the balance of its lot. The Disputed Area as shown on the Plan conforms generally with the record presented to this court in acting on the earlier motions: it is located immediately north of two tree stumps shown on the Sketch Plan and contains an area of 272+/- square feet. See Affidavit of John Bruno, sworn to on July 24, 2020, ¶ 6 and Ex. 2 (based on the Sketch Plan, Mr. Geiger is disputing 272 square feet more or less)). Accordingly, Needham Miller LLC's Motion To Substitute Plan For Lis Pendens is ALLOWED, with the proviso that Mr. Geiger can file his own motion to substitute his own surveyed plan for the Plan to correct any perceived inaccuracies provided that he does so within the next 15 days.

SO ORDERED