Published on:

Massachusetts Landowner Establishes Title to Fenced, Neighboring Property by Adverse Possession

It is not uncommon for neighboring landowners to dispute ownership of areas bordering their respective properties. In a recent decision, the Massachusetts Land Court determined the issue of whether a plaintiff gained title to an area of property through adverse possession.don-t-fence-me-in-1554445-640x480

In MacNevin v. Carroll (Mass. Land Ct. Feb. 25, 2016), a pair of next-door neighbors disagreed as to the ownership of a small parcel of land between their properties. While there was no dispute regarding the record boundary line, a fence between the properties encroached upon the defendant’s property. The plaintiffs claimed ownership by way of adverse possession of a narrow parcel of land that lies between the fence and the record boundary line. The defendant denied the claim, arguing that the plaintiffs did not meet their burden to establish adverse possession because the fence had only been in its present location since 2005.

In Massachusetts, title by adverse possession can be acquired by proof of nonpermissive use that is actual, open, notorious, exclusive and adverse for 20 years. The plaintiffs must occupy the disputed property with an intention to appropriate and hold it as an owner of the property, and to the exclusion, rightfully or wrongfully, of everyone else. Importantly, the required period for adverse possession can be reached by tacking a predecessor’s period of adverse possession, if privity of estate exists between the plaintiff and the previous adverse possessors.

The only issue contested by the parties in MacNevin v. Carroll was when the fence had been erected. The enclosure of land by a fence is ordinarily the gold standard of proof of adverse possession. Fenced property provides direct and often incontrovertible evidence of possession that is open and notorious, excludes the record owner, and provides the adverse possessor with demonstrably exclusive use of the land. However, although a fence meets all of the physical elements of an adverse possession claim (use that is open and notorious, exclusive, and nonpermissive), if is moved or destroyed before the requisite 20-year period has elapsed, the adverse possession claim fails.

In evaluating the evidence, the Land Court credited the testimony of the plaintiffs that the fence had been built in 2004, which was corroborated with photographic exhibits. Therefore, in determining that the plaintiffs’ use of the property was actual, open, notorious, exclusive and adverse for 20 years, due in large part to the fence that had enclosed the area inside the plaintiff’s boundary, the court held that the plaintiffs established title by adverse possession.

If you have questions regarding your property rights in boundary disputes, seeking advice from a qualified attorney may be beneficial. At the Massachusetts firm of Pulgini & Norton, our experienced real estate attorneys provide legal guidance to clients in a variety of property matters, including adverse possession, land use and zoning issues, easements, and other land transactions. To discuss your real estate needs with one of our skilled attorneys, call (781) 843-2200 or contact us online.

More Blog Posts:

Appeals Court of Massachusetts Decides Easement Issue in Neighbors’ Dispute, Massachusetts Real Estate Lawyer Blog, published September 4, 2015

Massachusetts Land Court Rules on Issues of Adverse Possession and Prescriptive Easement, Massachusetts Real Estate Lawyer Blog, published December 15, 2015

Contact Information