A portion of the D’s home encroaches on P’s land. Both parties owned ocean front property. The trial court found that it would be very expensive to remove the encroached portion of the house. The encroaching portion was build prior to D’s purchase of the home.
In Mass., “a landowner is ordinarily entitled to mandatory equitable relief to compel removal of a structure significantly encroaching on his land, even though the encroachment was unintentional or negligent and the cost of removal is substantial in comparison to any injury suffered by the owner of the lot upon which the encroachment has taken place.”
However, Mass. courts have, in rare cases, left the P to remedy of damages where the encroachment “has been made innocently, and the cost of removal by the D would be greatly disproportionate to the injury to the P from its continuation.”
Whether the court can issue an injunction for removal of the property, where D did not build the encroachment.
Yes. The invasion of land, in this case, is too substantial to deny mandatory injunction. Where exceptions have been granted in the past, the encroachment upon the neighboring land has been less substantial or “de minimus.” The encroachment here is over nine percent of Plaintiff’s lot; this is a substantial encroachment. Photographic evidence shows that the encroachment greatly enhances congestion within P’s lot.
The result of the injunction would “result in the destruction of defendants’ dwelling.” D’s owned their property for 12 years prior to this lawsuit, while it was the prior owners who built the encroachment. D’s house was in plain view when P purchased their property. They knew and were aware of the encroachment one month after a survey was conducted demonstrating that the encroachment was on their land. They were satisfied with the land at the time of purchase, however; therefore, it is presumed that they only became unsatisfied upon the survey. This represents an “unexpected windfall” for the P’s in this case “rather than an intentional injury.” Equity does not justify the removal of the encroachment. D would receive a great deal of hardship in removing the property and is innocent in the construction of the encroachment. Injunction is furthermore not necessary because the parties could negotiate on their own a relocation of the land’s boundaries at a fairer price.