May 26, 2021
In September 2020, MBM updated its clients that, in Geiger v. Needham Miller, LLC, No. 20 MISC 000269 (JSDR), the Land Court declined to grant a preliminary injunction to a Plaintiff claiming ownership by adverse possession over a 270 square foot area of the Defendant LLC’s property (the “Disputed Area”) based simply on his lawn maintenance of the area. On April 27, 2021, the Land Court entered summary judgment in favor of the Defendant and against the Plaintiff, concluding that his “use of the Disputed Area, consisting solely of lawn maintenance, was not open and adverse,” and his use did not “preclude use of the Disputed Area by others.” Based on the facts set forth in this case, the Land Court held that finding the Plaintiff had established adverse possession “would set the threshold for such a claim too low.”
The Geiger decision serves as a reminder that “good fences make good neighbors” because simple lawn maintenance and landscaping of an open space area may not establish a claim for adverse possession.
At summary judgment in this case, the Plaintiff continued to rely simply on his lawn maintenance and landscaping activities of the Disputed Area as sufficient proof of adverse possession. The Court, however, declined to consider acts of “weekly lawn mowing during the growing season, application of grass seed and fertilizer as needed, application of herbicides, … fall and spring cleanup of fallen leaves, branches and other debris [and] … converting some of the [the Disputed Area] from grass to a mulch bed” as an open and adverse use of the Disputed Area. In rendering its decision, the Court noted that lawn maintenance, while a factor in finding adverse possession, is not sufficient alone.
Despite the Plaintiff’s continued reliance on the 2019 Appellate Court decision in Miller v. Abramson, 95 Mass. App. Ct. 828 (2019), the Court differentiated the facts of this case from that of Miller. It noted that Miller found “mowing, fertilizing and occasional trimming of trees and shrubs” sufficient to establish adverse possession, but there was also a “natural boundary” of trees and shrubs that separated the properties. In support of its position, the Court relied upon the 2017 Land Court decision in Mullins v. HD/MW Randolph Ave., LLC, 25 LCR 221, 224 (2017), which noted “the peculiar characteristics of a particular area, such as its size (usually its rather small size), may render more routine cultivation and maintenance sufficient despite the lack of accompanying structures or major landscape alterations.” Here, the Court found that the Plaintiff did not do anything that indicated a separate and exclusive use of the Disputed Area.
Additionally, the Court found that Plaintiff’s landscaping and lawn maintenance were not exclusive. In this case, as the Plaintiff did not take any steps to fence off or preclude others from utilizing the area. This was also explicitly contradicted by the Defendant LLC’s predecessor-in-interest’s landscaping service, who entered onto the Disputed Area and the Plaintiff’s property in performing its landscaping services.
The Geiger decision serves as a reminder that “good fences make good neighbors” because simple lawn maintenance and landscaping of an open space area may not establish a claim for adverse possession.