It's the Law

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It's the Law! *

by Demian David Tebaldi, Esq.

Email your questions to: dtebaldi@tebaldiesq.com

December 18, 2006

Dear ITL: New neighbors recently moved in next door, and they started to assemble what appeared to be a dog kennel right on the border of our properties. We each have about 1.5 acres, so it is not the case that they had no other place to put the kennel. We asked them to please relocate the kennel further away from our boundary, and they refused, saying that they could put the kennel wherever they wanted. They have 3 dogs in the kennel and we are often greeted with barking and growling when we go outside as the kennel is relatively close to our areas of activity. Is there anything we can do to get them to move the kennel? A.F.K.

Dear A.F.K.: Your new neighbors are correct, in that they can place their kennel anywhere they wish, subject to any applicable zoning requirements or specific land use restrictions. This means, in effect, that so long as your neighbors are allowed to place a kennel at or near your shared property line, they can.

Free use of land, however, is tempered by the maxim "sic utere tuo ut alienum non laedas" – use your own so as not to injure another’s. If your neighbors’ use of their property unreasonably interferes with your use and enjoyment of your property, you may bring suit, to enjoin them from continuing the offending use, or for monetary damages. The key here is that the interference must be unreasonable to you (subjectively), as well as to the average person (objectively). Under the modern approach, a balancing test may be applied as well – does the benefit (economic or otherwise) to the defendant land owner outweigh the detriment to the plaintiff neighbor? If so, an action against the landowner may not succeed. If, every time you go outside, the dogs kenneled by your neighbors begin barking, and they don’t stop until you go back in the house, there may exist a private nuisance that might be compensable, or for which there may be a remedy, at law. An injunction might be the most appropriate, wherein you would ask the Court to issue an order requiring your neighbors to place their kennel a certain distance from your shared property line.READ ENTIRE COLUMN

Dear ITL: A couple of years ago, my parents had wills executed. To save money, they decided to forgo an attorney and wrote the wills themselves, and had my sister and brother witness their signing.

While at a party the other night, I mentioned this to a lawyer friend of mine, and he told me that my parent’s wills might be rendered void by the fact that, while there were two witnesses to each signing as required by law, the witnesses were people who inherited in the will. Is this true? Should my parents redo their wills? V.M.

Dear V.M.: The law requires that a will have, among other things, two subscribing witnesses to be valid. If, in the will, the testator makes a gift to a subscribing witness, generally speaking that gift to that witness is rendered void by operation of law, and falls into what is called the residuary of the estate, or “what’s left over after all specific gifts are taken into account.” The will as a whole remains valid, subject to its compliance with other legal requirements.

There is an exception to this rule against gifts to “interested,” or inheriting, witnesses however. If the gift to an interested witness amounts to no more than what that witness would receive from the testator’s estate if the latter were to die intestate (that is, without a will), then the gift may be saved. Any gifts your brother and sister are to receive from your parents’ estates by means of the wills they witnessed may still be valid, therefore, so long as the amounts given to them do not exceed those which they would receive in the event the wills were denied probate.

*Disclaimer: The answers provided in this column are not in any way to be construed as legal advice. While the author is an attorney admitted to practice law in the Commonwealth of Massachusetts, the questions presented do not come from clients, but from anonymous members of various Massachusetts communities. The answers presented merely describe what the law is, and do not contain specific strategies for dealing with the situations presented. If you have questions regarding these or other legal issues, please contact Attorney Demian David Tebaldi at 508-435-5576.

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