The Fence Is on the Wrong Side: Boundaries and Encroachments

Boundary problems are quiet until they are not. A fence goes in slightly off the line, a shed sits in the corner for years, a driveway has always swung a little wide, and everybody is perfectly content — until somebody sells, and a lender or a buyer asks a question nobody has asked in thirty years.

The plot plan is not the boundary

The document most buyers see is a mortgage plot plan, prepared for the lender. It locates the building approximately and it is not a boundary determination. Title insurance in Massachusetts makes the same point from the title side, and it is worth repeating because the two documents get confused constantly.

What settles a line is an instrument survey, performed by a registered land surveyor, who reads the deeds, the recorded plans and the monuments on the ground and tells you where the boundary actually is. It costs real money and it is the only thing that answers the question.

Order one when any of the following is true: a fence, wall, shed or driveway sits near a line; you intend to build, fence or subdivide; the deed describes the parcel by reference to features rather than to a recorded plan; or anything about the abutting properties suggests somebody is not where they think they are.

Adverse possession, and why twenty years matters

Massachusetts recognises adverse possession. Broadly, a person who uses land that is not theirs openly, notoriously, adversely, continuously and exclusively for twenty years may acquire title to it. The limitation period sits in M.G.L. c. 260, § 21.

The elements are more demanding than they sound, and they are decided on facts rather than on sympathy. Use that is permitted by the owner is not adverse — permission defeats the claim, which is why a written licence granted to a neighbour is sometimes the cheapest solution to an encroachment. Use may also be tacked across successive owners, so twenty years does not have to be one person's twenty years.

The softer cousin is the prescriptive easement: the same period and similar elements, but producing a right to *use* rather than to own. A driveway crossing a corner of the neighbour's land for decades is the common version.

The exception that catches everyone out

Registered land is different. Massachusetts has two systems — recorded land and registered land, the latter confirmed through the Land Court — and title to registered land generally cannot be acquired by adverse possession. That distinction, at M.G.L. c. 185, § 53, can decide the entire dispute before anybody argues about the facts.

So the first question in any encroachment on a Massachusetts property is not how long the shed has been there. It is which system the land is in, and your closing attorney will know from the title examination.

Trees, branches and the Massachusetts rule

The most common neighbour question and one with a clear, unsatisfying answer.

Under the long-standing Massachusetts rule, a landowner troubled by branches or roots crossing the boundary from a neighbour's healthy tree has a self-help remedy only: you may cut them back to the property line, at your own expense, and that is generally the extent of it. You cannot compel the neighbour to remove the tree or recover for the nuisance of leaves, shade or fruit.

Two qualifications matter. You may not cut beyond the line or damage the tree itself — doing so risks liability, and Massachusetts has a statute on wilful tree cutting with multiple damages attached. And a tree that is dead, diseased or visibly dangerous is a different question, because that starts to look like negligence rather than nature.

A tree standing on the line is generally the common property of both owners, which means neither may remove it unilaterally.

If you are buying and something looks wrong

1.Walk the boundaries, not just the house. Look for fences, walls, sheds, plantings, parking and worn paths.
2.Ask the seller directly, in writing, whether there is any agreement or dispute with an abutter. The answer becomes part of the record.
3.Order a survey during the inspection period, not after. A boundary problem discovered before your contingency expires is a negotiation; discovered afterwards it is a purchase.
4.Tell your attorney what you saw. They can check the recorded plans, look for recorded easements and establish whether the land is registered.
5.Ask whether title insurance will cover it. An owner's policy has exceptions, and a survey-detectable encroachment is commonly one of them unless specifically endorsed. This is one of the clearest arguments for buying the owner's policy and for having the survey.

If you are selling and you already know

Deal with it before you list. The options, cheapest first:

A written agreement with the neighbour acknowledging the line and permitting the encroachment as a revocable licence. This stops the twenty-year clock and costs a conversation and a modest legal fee.
A recorded easement, where the arrangement should be permanent and should bind future owners.
Moving the object. Sometimes the shed simply gets moved.
A boundary line agreement, recorded, where both owners accept a line that may not be precisely where the deeds put it.

What not to do is say nothing and hope. A buyer who discovers it at their survey is a buyer renegotiating with leverage, and a known defect concealed is the kind of thing Chapter 93A exists for.

Fences specifically

Build inside your own line, not on it, and confirm the line before you dig. Many towns have their own fence bylaws on height and placement, and a fence built on the line becomes a shared problem the first time it needs replacing. Massachusetts also has old fence-viewer provisions still on the books, which municipalities rarely use but which exist.

The practical summary

Most boundary irregularities are decades old, harmless and resolved with a signature. They become expensive only in two situations: when they are discovered under time pressure during a sale, and when twenty years has been allowed to run while everybody was being neighbourly about it.

Both are avoided the same way — establish where the line is, in writing, before you need to know.