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Massachusetts Land Court Explains Requirements for Acquiring Wooded Land by Adverse Possession

Gaining title to property through adverse possession generally requires that certain legal elements be proven in court. The Massachusetts Land Court issued a decision on April 6, 2017, discussing the criteria for acquiring ownership in such a manner. In the case, the plaintiff claimed adverse possession of an 8,600-square foot, partially wooded rectangular parcel of land owned by the defendant, a real estate developer. The plaintiff alleged that his predecessor in title and he mowed and maintained the area in question from 1978 to the time of the present dispute, and, accordingly, he acquired title to that section of the defendant’s land by adverse possession.

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In Massachusetts, title by adverse possession can be acquired only by proof of non-permissive use that is actual, open, notorious, exclusive, and adverse for 20 years. The burden of proving each element falls upon the party claiming title by adverse possession, i.e., the plaintiff in the case. To prove actual use, the plaintiff must establish changes upon the land that constitute sufficient control and dominion over the area, or, in other words, acts similar to those that are usually and ordinarily associated with ownership. Open and notorious use puts the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right. In addition, the plaintiff must be able to show a lack of consent from the true owner, rather than mere permission.

In considering the plaintiff’s claim, the Land Court explained that the particular acts that would be consistent with ownership and provide notice vary depending on the features of the land in dispute. In the case, part of the area claimed by the plaintiff contained numerous trees, with its surface covered with brush, weeds, and forest growth. The court found that the plaintiff’s intermittent actions of dumping leaves and grass clippings onto the wooded portion of the land was not evidence of actual use but instead the actions of a landowner attempting to place unwanted debris beyond the bounds of his own property.

Furthermore, the court went on to find that, given the wild character of the area, the plaintiff’s actions were not open and notorious. The Land Court explained that in cases of wild or wooded property, the claimant generally must establish that the land has been enclosed or reduced to cultivation or is exceptionally visible and overt. Since the plaintiff could not produce evidence of cultivation, improvement, or enclosure, and there was barely any real use of the disputed wooded area, the court held that he failed to demonstrate the elements of actual, open, or notorious use. Similarly, with regard to the semi-cleared portion of the disputed area, the plaintiff’s limited lawn maintenance and installation of a sprinkler head were not significant nor sufficiently open and notorious to acquire the area by adverse possession. Accordingly, the plaintiff’s claim was denied.

Pulgini & Norton, LLP is a Massachusetts law firm designed to facilitate residential real estate transactions for individuals and families. Our land use attorneys can provide guidance regarding purchase and sale agreements, mortgages, building permits, and all other residential property issues. To meet with one of our professionals, call (781) 843-2200 or contact us online and schedule your free consultation.

More Blog Posts:

Massachusetts Landowner Establishes Title to Fenced, Neighboring Property by Adverse Possession, Massachusetts Real Estate Lawyer Blog, published March 7, 2016

Massachusetts Bank’s Mistake Has Significant Consequences in Reverse Mortgage Case, Massachusetts Real Estate Lawyer Blog, published September 12, 2016

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