Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the June 10, 2015 mailing of "Constructive Notice":

Rock, Paper, Chainsaw

Here’s how it works: Rock marks boundary; Paper conveys title; Chainsaw demolishes encroachment!

In rural Minnesota, Mark purchased a parcel of land with a home and detached “three-stall” garage. He purchased the parcel “as-is,” without a detailed contract, a survey or home inspection (and probably without title insurance). An email from the seller had mentioned “the garage issue.” Mark never asked what the “issue” was, but the seller's local agent testified he explicitly told Mark the boundary line "went through the middle of the garage." The deed was delivered in 2013.

It turned out the garage indeed straddled the boundary of the adjoining parcel. The boundary had previously been indicated by “monument rocks.” The adjoinder was owned by Roger, the estranged brother of Mark’s seller. Soon after the sale, Roger demolished the portion of the garage that encroached on his land, using a chainsaw to cut the building along the property boundary. Approximately two-thirds of the structure was removed (photo can be found here). Mark sued, claiming adverse possession, prescriptive easement and trespass.

The trial court found that both parcels had been owned by successive generations of the same family from 1953 until Mark bought his parcel in 2013. Hence, the placement and maintenance of the garage was subject to “the inference, if not the presumption,” that the original possession of Roger’s land “was permissive and not adverse.” Not only did Roger prevail, but the court also awarded him costs and disbursements, even though it “in no way condones the rash actions.” Besemann v. Weber, #31-CV-13-2695 (Minn. Dist. Ct., 9th Dist., Itasca Cty., May 29, 2015).


A party whose testimony is determined to be “neither credible nor accepted” by the Court rarely comes away with the victory. Yet, that is what happened here. The Court did an admirable job cutting through the acrimony and parsing testimony of events that occurred during the past 60-odd years. (One witness referred to another as a “psychopath” and said she hopes a third witness “gets hit by a bus.”)