City stays out of property disputes

Developers encroach on abutters’ land, city approves controversial projects

Joyce Francis, a Roxbury resident who lives at 25 Marcella St., found herself engaged in a property dispute after Boston Development and Consulting LLC bought the property next to her home and began to build seven condominiums.

Francis said the developer, Stephen Fish, came to her and asked if he could pull up the hedges that were growing between the two properties as part of the construction process. She said she understood the agreement to be that Fish would have the hedges removed, do the construction work and then replant them. Instead, Francis said, what followed was a construction process that left the siding of her house scratched and left a retaining wall that presses up against her home, restricting access to the side of her house and preventing her from getting to all her land.

“I’m not able to access the radius of the property,” Francis said. “I can’t come into my yard and get to my property. I have to climb over the railings, and that’s not right.”

She said that when she asked why the retaining wall was so close to her front steps and walkway, Fish said it was not going to stay.

“I was saying to him, ‘Why is this so close to my house?’ Like, ‘Why do you have all this stuff here?’” Francis said. “[He said] like, ‘Oh, we’re going to move that. That’s not going to be there.’”

Fish could not be reached for comment.

Francis found herself unsure how to resolve the issue.

“Initially I didn’t know what to do,” Francis said. “I figured that the checks and balance systems they supposedly have in place would do what it’s supposed to do.”

On property disputes, Boston residents often find little support. Complaints can range from the inconvenience of a small strip of disputed land to encroachments like Francis’ that impact the use of one’s property.

However, the city’s Inspectional Services Department (ISD) does not have jurisdiction over disputes on private property, according to a representative from the mayor’s press office. ISD may only determine whether something like a fence marking a property line is permitted correctly or if it exists somewhere other than where the plans on file say it should be.

Similarly, the city’s Office of Housing Stability offers mediation services, but these are focused on conflicts between landlords and tenants, not between neighbors.

With a lack of available recourse at the municipal level, residents are left with the Massachusetts Land Court as the only available official solution.

Roee Agami and Townsman Realty LLC, who own the properties at 73 and 75 Ruthven St., submitted a complaint in Land Court against Solomon Chowdhury and his development company, Shanti Acquisition LLC. The complaint against Chowdhury, filed in August last year, is for blocking a passageway that is set aside in a deed for their use, both during construction of and with proposed parking spaces for his abutting property at 10 Ruthven Park.

They are now requesting the court prevent Chowdhury and Shanti Acquisition from further obstructing the passage.

Getting legal help

Solving property disputes in court can quickly become expensive.

Ellen Rappaport Tanowitz, a local lawyer who works in real estate law, said that going to Land Court with a lawyer could easily cost tens of thousands of dollars.

“The court fees are relatively inexpensive; the filing fees are just a few hundred dollars, so if it’s something you want to brave on your own, without a lawyer, you’re not going to have a lot of hard costs,” Tanowitz said. “But because of the complexity of the legal questions, I think most people would be well served to have a lawyer to help them to navigate the issue.”

Tanowitz recommends that the first step property owners should take if they feel their land is being encroached on is to get a professional survey done.

“Even if you have a fence, where you think your property line is may not be where your property line actually is according to the official records, which are recorded in the registry of deeds,” Tanowitz said.

When Francis had a survey done, the surveyor found that her property extends about halfway across the retaining wall that was built by the condominium developers, and which now keeps her from being able to walk all the way around her house. Now, neon-colored flags tied to wooden stakes mark the property line.

Tanowitz said that after getting a survey, the next steps will vary, depending on the facts.

“It’s not a simple ‘Here’s the formula,’” Tanowitz said.

Those encroaching on a neighbor’s property may be able to gain ownership of the disputed land through adverse possession if it has been used by them or previous owners of the property for more than 20 consecutive years, among other requirements.

Similarly, one may get the right to officially use a portion of a neighbor’s land — often for a specific purpose — through a process called easement by prescription, in which the court grants the right to use the land but not ownership of the land. It has a similar requirement of uninterrupted use for 20 years, among other factors.

To avoid expensive and long court proceedings, Tanowitz recommends taking other steps first, such as talking with the neighbor or going to mediation services, such as those offered by the Real Estate Bar Association of Massachusetts. These options are less of a drain on time and money. However, they require cooperation from both neighbors.

“Mediation … is a voluntary process,” Tanowitz said. “It takes two to tango, so you and the neighbor both have to be willing to go.”

If going to court is the only available option, organizations like the Massachusetts Bar Association Lawyer Referral Service may be able to refer clients to lawyers who will work at reduced rates.

Beyond encroachment disputes

For neighborhood organizers, neighborhood development issues are deeper ones, rooted in the process of zoning and permitting.

Bette Toney, the chairperson of the Tommy’s Rock Neighborhood Association, said that the Zoning Board of Appeal (ZBA) and Boston Planning and Development Agency will approve projects even when residents are opposed.

“We have cases — many cases — in terms of how our voices are just being ignored regardless of how much we show the detriment to the neighborhood, and how they are going against the code,” Toney said.

As with disputes over encroachment, when disputed projects are approved, often the only solution is to go to court.

Toney said she challenged a 14-unit property at 41 Regent St. in Roxbury.

“I actually took them to court, but because of lack of funds I wasn’t able to complete the process,” Toney said. “But I stayed in court, by the grace of God, for two-plus years with these folks, and then finally I just didn’t have enough money to get it done.”

Similarly, Agami and Townsman Realty have taken the ZBA to court over granting the variances that allowed Chowdhury to begin construction at 10 Ruthven Park.

According to a complaint against the ZBA submitted October last year in Land Court, the agency failed to properly provide notice to Chowdhury’s affected neighbors before granting the variances and didn’t properly consider the impact the construction would have. The court process is ongoing.

Lavette Coney, president of the Mount Pleasant, Forest and Vine Neighborhood Association, said the system as it is currently set up allows people with more resources to benefit, even though development should work for everyone.

“The fact that [some developers have] so much money and … can draw out proceedings for a long period of time while others don’t have the money to do that, so eventually they give up, that shouldn’t be a recourse,” Coney said.