Hurtubise v. Mcpherson

80 Mass. App. Ct. 186 (2011)

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Nature of the Case

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Facts

P and D owned adjoining tracts of land. P operated a storage business on his property. In late 1999 or early 2000, he wanted to build an additional storage shed along the border between his property and D's property. P could not meet the setback requirements of the local zoning ordinance unless he acquired land from D. P proposed a land trade with D. D agreed to the proposal and the parties shook hands. P obtained a building permit in June of 2000 and began to excavate along the border of D's lot. During the eight weeks of construction, D was present and observing at the site. D never objected to the location of the new building. P constructed a 300-by-thirty-foot storage shed. The total cost came to $39,690. After construction, P sent D a plan outlining the details of the land swap. The shed extended onto D's lot by ten feet. D objected and accused P of taking more land than he initially had represented. D demanded a payment of $250,000. D then notified the town that P's new building encroached on his property. The town's revoked P's building permit and ordered him to cease occupancy of the storage shed. D threatened to demolish the building. P brought suit for specific performance of the oral agreement. D raised the Statute of Frauds as an affirmative defense. The judge concluded that the parties had agreed to exchange parcels from their respective tracts. He held that the agreement was enforceable, despite the failure of the parties to comply with the Statute of Frauds, because P detrimentally relied upon the agreement by constructing the new building, and because D implicitly assented by silent observation throughout the construction process. D appealed.