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.
A recent Land Court case, Bassin v. Fairley, 11 MISC 451773 (AHS) (Mass. Land Ct. June 17, 2014), provides a good reminder of the kind of inquiry a court will make when deciding whether a landowner can remove a tree that straddles a common boundary line.
To the unwary, it might be surprising that property dating back to the 1870s could, almost 150 years later, fall prey to a boundary line dispute. But it does happen, as the recent case, Bernier v. Fredette, 85 Mass. App. Ct. 265 (2014), reminds us.
It is certainly not unusual to hear about tree cutting cases where a landowner wants to trim the branches of a neighbor's tree that overhang the common boundary line-which is lawful, to a point-or even those cases where a person trespasses onto the land of another to trim or cut down trees entirely situated on that lot-which is unlawful. Whatever the underlying motivation for such trimming and cutting, Massachusetts law is fairly clear about whether liability and damages will ensue under those circumstances.