Trespass Bonds Allow Access to Abutters’ Property for Repair or Maintenance

By Kimberly Rau, MassLandlords, Inc.

If a next-door neighbor refuses to let you on their land so you can maintain or repair your own property, a trespass bond offers a legal compromise that gives you access and protects their investment.

Your next-door neighbor clearly doesn’t want unexpected company. But what if you have to access their property to fix yours? (Image: Chris Robert for Unsplash)

In this article, we’ll give an overview about trespass bonds, including what they are, how to get them and important things you need to know.

What Is a Trespass Bond?

Massachusetts law (MGL Chapter 266, Section 120B) allows you to temporarily access your neighbor’s property if doing so is necessary to conduct repairs or maintenance on your buildings or property, or to “prevent waste” (more on that later). For instance, if you need to repair a section of your fence, you may need to cross into an abutting yard to do so.

In densely settled neighborhoods, it may be impossible to do any work to the structure of your house without going onto others’ property. A neighbor you know well may give you permission to come onto their land without batting an eye, but if you have many rental units or do not owner-occupy, abutting landowners may not feel comfortable granting access to someone they aren’t familiar with. That’s where the trespass bond comes in.

This is a special bond from the local police station that allows you temporary access rights and also ensures your neighbor’s property is protected in the case of damage. With a trespass bond, you cannot be found guilty of trespassing, which is a misdemeanor. You also cannot be brought up on civil charges for trespassing (civil trials are where damages are typically awarded). The actual cost of repairing any damage to the property would still be your responsibility, however. You just won’t get a criminal record for accessing the property if you get a trespass bond first.

Getting a trespass bond is easier than you might think.

In areas like Somerville, where houses can be very close together, performing certain maintenance or repairs may require accessing your abutters’ property. (Image: Jane Sorensen for Unsplash)

How Do I Get a Trespass Bond?

Ideally, you won’t need to get a trespass bond. Before going to the police station, you should approach your neighbor and let them know you would like to come onto their property to repair or maintain your own rental property. You should be specific about what you need to do, and how much time it will take.

If they say no, you will need a trespass bond.

In plain language, a bond is a guarantee. For example, people who are arrested and awaiting their court date may be allowed to post a bond (also known as bail money) that guarantees they will come back to court for their hearing. If they show up, they get their bond back. If they don’t, they lose the money.

To obtain a trespass bond, you will put down money that says you will not damage the property. If you do, that money can be used to make repairs. If you don’t damage anything, you get your money back.

To get a trespass bond, go to your local police station and explain you have asked your neighbor for access and were refused. Tell them you need to get a bond to access the property under MGL 266, Section 120B.

The law requires the access be made “expeditiously” and that you take care not to cause any damage to the other owner’s building or property. In other words, don’t take three weeks to complete a project that should take two hours, and be careful while doing it.

To ease the abutter’s mind, you will need to post bond with the chief of police. This means providing a financial guarantee of $1,000. You get the money back when your work is done without any damage to the neighbor’s house or land. (Fun fact: Section 120B was added to Chapter 266 in 1971. If the bond amount had kept up with inflation, it would need to be $8,000 today.)

Abutter Land Access: Play by the Rules

When you get a trespass bond from the police station, there are certain rules you’ll have to follow to be acting lawfully.

First and foremost, you cannot be a constant presence on your neighbor’s property.  Access is limited to no more than eight hours in a single day, and you are limited to 30 days of access in one calendar year.

You also cannot store tools or other materials on the property overnight. Everything has to go back with you when you leave for the day.

Finally, when you are done, you are required to restore the property to the state it was in when you first entered. Don’t leave trash around or debris from your project. If you moved something, put it back, taking care not to break anything.

Does Anyone Actually Use Trespass Bonds?

In many cases, accessing your neighbor’s property is a simple matter of giving them a heads up and completing your work quickly. But sometimes things don’t go according to plan, or the repairs are more invasive than expected. The case of Sorrentino v. Muse gives an example of when Section 120B was properly invoked to avoid a continuing injunction.

In 1999, Patricia Muse and Leonard Caruso were living with their four small children at 290 North St. in Boston’s north end. Today, the property is made up of privately owned luxury condominiums, but back then, it was a single-story building. Muse and Caruso sought a zoning variance to add four stories to the structure, and their next-door neighbor, Albert Sorrentino, did not object. Sorrentino’s own building was four stories high, and the addition was in character with the neighborhood.

However, Sorrentino did not give Muse and Caruso permission to access his property to conduct their renovation. By 2001, it was evident that construction workers would need to get on Sorrentino’s roof to finish their work. Sorrentino brought the case to court seeking an injunction, which was granted, and then modified once Muse and Caruso provided additional requested information to the court.

By the time the case reached the courts, workers needed to be on Sorrentino’s roof for only two more projects. One was to install lead flashing and a rubber membrane over the gap between the homes to prevent water and snow from seeping between the buildings. The other project was to finish installing siding on the newly constructed fifth floor. To do so, workers needed to put scaffolding on Sorrentino’s roof to access the unfinished areas.

The courts determined the flashing and rubber membrane were “minimal” encroachments. Yes, they would be on Sorrentino’s roof as well, but the damage that could occur without them would be far greater than any risk that existed. The courts also determined if Sorrentino ever wanted to add another story to his own building, the membrane could be removed, at Muse and Caruso’s expense.

However, the courts could not determine the encroachment for the siding project was “truly minimal.” It involved a scaffolding setup, and two adult men, on the roof itself, and there was no way to tell how doing so might diminish the life of Sorrentino’s roof. The court said if the trespass was not “truly minimal,” then they could not deny the injunction.

Muse and Caruso were able to prevail in court by proving they had already gotten a trespass bond. They did so by invoking the state statute, which includes access rights if it will “prevent waste,” because the fifth story was already constructed and would not be watertight without siding (and likely would not get a certificate of occupancy in that condition).

“If the siding had fallen off, there would be no question that its replacement would be a ‘repair,’” the decision reads. “Does it cease being a ‘repair’ if the siding did not fall off but was simply never put on?”

“What is not a matter of semantics is that the addition will be wasted if the siding work is not completed,” the decision concluded.

Muse and Caruso were allowed to have their work completed.

What To Do if You Are Served or Must Serve a Trespass Bond

First, we advise you to avoid getting to this point if at all possible. If your neighbor needs access to your property, you should provide it unless what they are requesting is truly egregious or could result in significant damage to your property. For greater peace of mind, you can add that neighbor to your policy’s list of named insured people.

If you are the one who must request access, you can show proof of your own insurance, and if they are still concerned, you can request that you be added to their policy’s named insured list.

However, if you cannot come to an agreement and one of you must invoke state statute to get access, there is reassurance through that $1,000 bond that if damage happens it will be covered. You should let your neighbor know you have a trespass bond before accessing their property so there are no surprises, and adhere to the time limits outlined under the law.

Remember, you can only seek a trespass bond if your intent is to repair or maintain your building or land “in order to prevent waste.” If you believe your neighbor is not accessing your land for this purpose, you can try to seek an injunction through the court. This will almost certainly be expensive and time-consuming, but is an additional avenue if you truly need it.