Can I Get Damages for Landscaping Costs of Encroaching Area?
Full Question:
Answer:
A person who has been unjustly enriched at the expense of another may be required to make restitution to the other. Despite not having a contractual agreement, a trial court may require an individual to make restitution for unjust enrichment if he has received a benefit which would be unconscionable to retain. A person may be deemed to be unjustly enriched if he (or she) has received a benefit, and keeping it would create injustice.
The doctrine of unjust enrichment is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated. The general rule is that a payment of money under a mistake of fact may be recovered provided that such payment will not prejudice the payee. It is considered unjust enrichment to permit a recipient to retain money paid because of a mistake, unless the circumstances are such that it would be inequitable to require its return. This applies even if the mistake is one on one side (unilateral) and a consequence of the payors negligence, or that the payee acted in good faith. "A person who has conferred a benefit on another by mistake is not precluded from maintaining an action for restitution by the fact that the mistake was due to his lack of care." (Restatement of Restitution § 59.) Equity, which is based on notions of fairness, often allows a person who pays money to another under the mistaken belief a valid contract exists to recover that money when the contract is subsequently canceled for fraud or mistake and the rights of innocent parties have not intervened. (Restatement of Restitution §§ 17, 28.)
A quiet title or trespass to try title action is the method of determining title to lands. In a quiet title action, it is possible to ask the court to issue an injunction to force another to do or refrain from doing an act. An injunction is an equitable remedy that the court may order when money damages will be inadequate to remedy the harm suffered. If someone plants trees that encroach on another's property, the land owner may have the encroachment removed.
In the case of an encroachment, a plaintiff may be awarded the fair value of the property that is encroached upon. Typically, the court will determine value of property based upon expert evidence as to the value of comparable property in the location. Sometimes, the encroaching structure may be ordered to be removed or moved at the defendant's cost. In order to award punitive damages for an encroachment, courts have held that the plaintiff needs to prove the defendant acted with recklessness that shows a conscious disregard of property rights. Punitive damages are designed to deter conduct that was based on wrongful intent, usually requiring some proof of fraud, malice, oppression, or other wrongful and intentional motives.
If a surveyor is negligent is surveying property, by failing to use the standard of care and skills typical in the profession, and that negligence causes harm to another, it is possible that the surveyor may be liable for all or part of a claim brought against the person harmed.
An easement may be created by agreement which grants a privilege of a specific and limited use of the land of another. A right of way is a form of an easement granted by the property owner that gives another the right to travel over and use the owner's land as long as it is not inconsistent with the owner's use and enjoyment of the land.
Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. Such acts must continue uninterrupted for the time period defined by state laws, which vary by state. In general, the acts of possession must be overt, hostile, exclusive, uninterrupted, and under a claim of right, etc., so as to give the owner or others claiming entitlement to possession notice and an opportunity to counter the adverse possession. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period, which varies by state, are evidence of adverse possession but cannot be used by a person with no claim to title other than possession. Certain public property is not subject to adverse possession. Some states require that the possession be "under color of title," or that the person must believe that he has the right to possess it and has some form of document or is relying on some fact that while not actually conveying title, appears to do so. In addition, many states require concurrent the payment of property taxes for a specified period of time, and a few states also require that improvements be made upon the land. Eventually, the possessor is required to file for title with the county recorder. The actual owner then has a limited amount of time in which to challenge the newcomer's title. Essentially, the owner's only argument is to claim some sort of disability; such as age, mental instability, or imprisonment. The owner is not required to do much in order to stop the possessor from acquiring title; merely sending the possessor a note granting permission to be there will usually suffice. Various rules exist regarding the continuousness of the possession and the ability to "tack" various periods of possession together in order to satisfy the time of possession requirement.
The following are MA statutes governining adverse possession:
G.L.c. 260, § 21. Limitation of actions for recovery of land.
Section 21. An action for the recovery of land shall be commenced, or
an entry made thereon, only within twenty years after the right of action
or of entry first accrued, or within twenty years after the demandant or
the person making the entry, or those under whom they claim, have been
seized or possessed of the premises, except as hereinafter provided;
provided, however, that this section shall not bar an action by or on
behalf of a nonprofit land conservation corporation or trust for the
recovery of land or interests in land held for conservation, parks,
recreation, water protection or wildlife protection purposes.
G.L.c. 260, § 22. Twenty year period; commencement.
Section 22. If such right or title first accrued to an ancestor or
predecessor of the person who brings the action or makes the entry,
or to any other person under whom he claims, the twenty years shall
be computed from the time when the right or title so first accrued.
G.L.c. 260, § 28. Effectual entry; requisites.
Section 28. No person shall be held to have been in possession of land
within the meaning of this chapter merely by reason of having made an
entry thereon, unless he has continued in open and peaceable possession
thereof for one year next after such entry or unless an action has been
commenced upon such entry and seisin within one year after he was ousted
or dispossessed.
