Many sections of the greater Boston area are characterized by densely populated neighborhoods. Many of these neighborhoods were established before the adoption of zoning codes that set minimum side and rear yard setbacks. And even today, in urban settings, there are some zoning codes that allow zero-foot set back criterion in some zoning districts. The result is that there are many structures in the Commonwealth built on, or within, just a few feet of a lot line. And in urban areas, there are row houses with shared party walls and adjoining roof lines. The proximity of these structures to abutting lot lines makes it extremely difficult or sometimes simply impossible for a property owner to make a repair to their property without entering their neighbors’ land.
An often-asked question is what permission does a property owner need to make an entry onto adjoining land to repair or maintain a building on their own property? A companion question is what happens if your neighbor refuses to allow access? Fortunately, the Massachusetts Legislature devised a process to allow such access, even over the objection of an abutting landowner. See G.L. 266, § 120B. If proper procedure is followed, the entry may be made and deemed not to be a trespass.
The Common Law of Trespass
A trespass is an unauthorized entry upon land in the possession of another. See Gage v. Westfield, 26 Mass. App. Ct. 681, 695 n. 8 (1988). Damages are not an essential element to the tort of trespass. See Ferrone v. Rossi, 311 Mass. 591, 593 (1942). Thus, an action can be brought even where a trespass causes no injury and permanent injunctive relief may be granted to enjoin a continuing trespass. See id. Based upon the long-established common law of trespass, permission for entry onto abutting lands must be secured to be lawful.
License for Permission to Access Land
Where permission is granted, the entry is made under license, which may be oral or in writing. At its essence, “a license is a contract”. Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 7 Pick. 344, 440 (1829). A written license will typically define the period of time during which entry is allowed and the conditions for such entry. An oral license is a considered “revocable at will”. Scioscia v. Iovieno, 318 Mass. 601, 603 (1945). Moreover, it is axiomatic in the context of oral licenses that with the grant of a license comes all rights incident and attendant thereto, in order to be able to exercise the licensed use. See Cheever v. Pearson, 16 Pick. 266, 273 (1834) (“[a]nd the license which legalizes the act itself, renders lawful also its incidents and necessary consequences”). Should a dispute arise about the scope of an oral license, its terms and provisions may be derived from the conversation of the parties and their conduct. See Goldstein v. Katz, 325 Mass. 428, 430 (1950); Vita v. Berman, 81 Mass. App. Ct. 748, 754 (2012), quoting T.F. v. B.L., 442 Mass. 522 , 526-527 (2004) (“‘[i]n the absence of an express agreement, an implied contract may be inferred from (1) the conduct of the parties and (2) the relationship of the parties'”).
The Statutory Exemption to Trespass
G.L. 266, § 120B provides that a landowner may make entry onto abutting land for “the purpose of maintaining or repairing his or her building or buildings in order to prevent waste [and] shall not be deemed guilty of trespass or liable civilly for damages, provided that such entry is made expeditiously and in the exercise of due care and that no damage is caused by such entry to the land or buildings of said abutting owner.” The statute is expressly intended to address the situation where buildings are “so close to the land of such other person as to require an entry on said abutting land for the purpose of maintaining or repairing said building or buildings”. G. L. c. 266, § 120B. As it provides statutory authority for entry and dispensation from trespass liability, the statute specifically addresses the situation where an abutting landowner refuses permission to enter to allow for maintenance and repairs.
To take advantage of this statutory exception to the common law of trespass, a landowner must follow the specific procedures outlined in G.L. 266, § 120B:
1. A request must be made to the owner or occupant of the abutting land for permission to enter the purpose of maintaining or repairing a building or buildings.
2. The landowners request for permission must be denied.
3. The landowner must notify the chief or other officer in charge of the police department of the city or town in which the land is located that he has requested permission to enter on adjoining land from the owner or occupants thereof for the purpose of maintaining or repairing a building or buildings and that such permission has been refused, and that the landowner intends to enter under the provisions of G.L. 266, § 120B.
4. Before entering onto the abutting land, the landowner seeking entry shall post bond with the chief of police in the amount of one thousand dollars to protect the adjoining landowner from damage caused by said entry.
5. No person so entering on land of another shall store material or tools thereon for more than eight hours in any one day nor shall he continue to enter thereon for more than thirty days in the aggregate in any calendar year.
6. After the entry, the entering landowner shall in all respects restore the adjoining land to the condition in which it was prior to said entry.
Few cases in Massachusetts have applied or interpreted G.L. 266, § 120B. Yet, one Superior Court decision does provide perspective on the exercise of this statutory right.
In Sorrentino v. Muse, 14 Mass. L. Rep. 77 (2001), 2001 Mass. Super. LEXIS 515, Chief Justice Gants of the Supreme Judicial Court, then a judge of the Superior Court, decided a case involving a homeowner (Sorrentino), who sought to enjoin her neighbors (Muse) and their contractors from a temporary trespass proposed to permit the neighbor’s siding contractor, to place his scaffolding on Sorrentino’s roof to install siding on Muse’s home. Without the siding, the dwelling would not be weathertight, would not qualify for a certificate of occupancy, and would constitute waste. The court noted that G.L. 266, § 120B “was plainly enacted because the Legislature abhors waste when it can be prevented by a short-term entry onto a neighbor’s property for purposes of maintenance or repair.” Id. at *14. Even though Muse was building an addition rather than a more straightforward repair, the trial court ruled that the statute was remedial in nature and “must be interpreted broadly in order further, not frustrate, the legislative intent and purpose”. Id. at *15.
Sorrentino v. Muse demonstrates that G.L. 266, § 120B is a broad remedial statute directed at protecting property values and the safety of land and buildings, by mandating a right of access to abutting property when necessary to avoid waste. The attorneys at Phillips & Angley are available to consult with landowners about the application of G.L. 266, § 120B to their property, to assist clients with compliance with the statute, and to negotiate and draft written license for entry and repair of buildings.
Written by Jeffrey T, Angley, Esq.
Copyright (c) 2020 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.
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