Articles Posted in Adverse Possession

Published on:

Typically, a person who claims a right to use a certain portion of property owned by the title holder will typically file an action to acquire legal recognition of that right.  The Massachusetts Land Court decided a case on May 1, 2017 involving the plaintiff’s claim of a prescriptive easement appurtenant to land owned by the defendants.  The portion claimed was over a cleared strip of land, visible on the ground, running from the public road through the defendants’ parcel to the plaintiff’s property.  The parties agreed that the plaintiff had acquired at least a partial fractional interest in the path that ran over the defendants’ land, but the nature and scope of that path was in dispute.power line

To establish a prescriptive easement in Massachusetts, a claimant must show the (1) continuous and uninterrupted, (2) open and notorious, and (3) adverse use of another party’s land (4) for a period of not less than 20 years.  The easement claimed is limited to the uses actually made of the section of property that meet those elements.  The burden is on the claimant to provide clear proof of each element.

The path at issue in the case was a six-foot wide dirt pathway that traveled in a straight line, without regard to topography.  Roots, stumps, and rocks had been left in the path.  At trial, the plaintiff testified that he did not create the path, nor had he ever maintained or cleared it.  Instead, the path had originated as a telephone line easement, which had been cut through the woods by the phone company.  By 1929, however, the telephone company had abandoned the easement, and the poles and wires were removed.

Continue reading →

Published on:

The Massachusetts Land Court issued a decision on April 19, 2017 settling a long-running real estate dispute involving the plaintiffs’ claim to a 1.7-mile stretch of beach on the south shore of Martha’s Vineyard. The court had previously determined that the plaintiffs did not have a title interest in the beach as it currently exists because, due to a combination of sea level rise, waves, tides, storms, and winds, their title interest was to a beach now submerged under the Atlantic Ocean. The issue before the court now was whether the plaintiffs had acquired prescriptive rights to use the entire beach throughout the year, in common with all others legally entitled to use it.beach

In Massachusetts, an easement by prescription is acquired by the continuous and uninterrupted, open and notorious, and adverse use of another party’s land for a period of not less than 20 years. The plaintiffs in this case claimed to have used the entire 1.7-mile length of beach adversely, notoriously, and continuously since at least 1938. In support of their claim, the plaintiffs relied on an accumulation of various uses and activities conducted by numerous members of their family, their tenants, and guests in the years between 1938 and 1999, in several locations on the beach. These uses included swimming, sunbathing, clamming, and picnicking during the summer season, in addition to riding in vehicles and on horseback, fishing, duck hunting, and surfcasting throughout different seasons of the year.

The court concluded that the evidence was sufficient to show that the plaintiffs’ use of the beach was open and notorious, since they made no attempt to conceal their use of the beach during the relevant time period, and the defendants actually knew about it and saw the plaintiffs use it. The court found that the plaintiffs’ use was adverse in that they used the beach believing that it was their right to do so, and they did not seek or obtain permission from the defendants to use the beach.

Continue reading →

Published on:

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.

woods

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.

Continue reading →

Published on:

In some situations, a well-traveled path through another’s personal property may give rise to an easement over time.  In a case decided on March 7, 2017, the Appeals Court of Massachusetts reviewed whether the plaintiffs were entitled to use a path located on the defendants’ property in order to access a nearby beach.  The case was on appeal following the Land Court’s decision finding that past use of the path by the plaintiffs and their predecessors had established a prescriptive easement over that portion of the defendants’ land.beach-1328647-640x480-300x225

The dispute originated during the previous ownership of the parties’ lots, which are located in two bordering subdivisions.  When the defendants’ subdivision was initially developed, a road was installed for construction use to reach the public road.  Thereafter, the same developer was hired to develop the plaintiff’s subdivision.  The developer breached a wall that ran between the construction road, so equipment and materials used for the defendants’ subdivision could easily be brought into the plaintiffs’ subdivision.

Early purchasers of lots in the plaintiffs’ subdivision testified that residents would regularly walk and bike down the construction road to access the beach, although they were not granted explicit permission by the developer to use the road.  In 1995, after the defendants acquired their lot, they installed a large boulder approximately four feet wide and four feet high at the northern entrance of the construction road, with an inscription that stated the road was a private way.  Despite the sign, the defendants regularly observed people using the road to access the beach.

Continue reading →

Published on:

It is not unusual for legal disagreements to arise out of an easement or the permissible use of one’s property by non-owners.  Recently, the Appeals Court of Massachusetts issued a January 30, 2017 decision in which it determined the rights of neighboring landowners over three disputed right of ways.  The plaintiff initially brought the action against his neighbors in Land Court, seeking to restrain them from maintaining a fence on any portion of his property.  The Land Court found that the neighbors did have rights to parts of the right of ways, but other parts had been partially extinguished by adverse possession.  Both parties appealed that decision to the higher court for review.gate

The three right of ways at issue abutted or were in the vicinity of the parties’ properties, leading to a public road.  After the defendants erected a fence, the plaintiff filed his action, claiming that the defendants’ fence blocked his right of ways, that he had ownership of the first and third right of way by adverse possession, and that he had acquired a prescriptive easement to turn around and park on certain sections of the defendants’ property.

The parties’ properties were originally part of a larger tract of land, which was divided into six lots in 1911.  The 1911 plan revealed that the parties’ current lots would be landlocked without the first and third right of ways.  In 1941, one of the lots was divided into northern and southern sections, owned by the defendants and the plaintiff, respectively.  The 1941 deed granted an express access easement for the defendants’ lot to use the second right of way located on the plaintiff’s lot.

Continue reading →

Published on:

Property conveyances are typically complex, and errors or ambiguities in the deed can lead to litigation years into the future.  This point is demonstrated in a recent case, Powell v. Ashley (Mass. Land Ct. Nov. 21, 2016), which concerns a 1973 deed that became the source of a years-long dispute between neighbors.house

In Powell, the defendants recorded a deed conveying the garage located on their property to the previous owners of the plaintiffs’ property in 1979.  The conveyance was problematic.  The deed was dated 1973, but the notary public’s commission indicated that the earliest it could have been witnessed was 1977.  The deed also lacked a metes and bounds description and was subject to an existing mortgage.  In addition, the previous owners lost their property through a foreclosure in 1978, and the property was sold a week before the deed was recorded.  Thereafter, the defendants resumed occupation and use of the garage.

In 2003, the plaintiffs brought an action in Land Court, seeking a declaration that they were the record owners of the garage, free of the defendants’ claims of record ownership and ownership by adverse possession.  While that litigation was ongoing, the plaintiffs also commenced an action in the Housing Court against the defendants.  After a hearing, the Housing Court entered judgment in the plaintiffs’ favor regarding record ownership of the garage.  The Land Court concluded that the Housing Court’s ruling was binding in the Land Court action on the basis of res judicata, a legal principle that prohibits parties from re-litigating the same issue.  The Land Court also held that since the defendants did not raise the defense of adverse possession in the Housing Court action, they were barred from arguing it in the present case.

Continue reading →

Published on:

Boundary disputes between neighbors are not uncommon, and issues regarding adverse possession of bordering property may arise after many years have passed. The Appeals Court of Massachusetts reviewed such a dispute in the case of Paris v. Morris (Mass. App. Ct. Aug. 3, 2016). In Paris, the plaintiff brought a complaint against his neighbor, alleging trespass and seeking declaratory relief with regard to a fence that encroached on his land. The land court judge, however, found that the defendant had acquired the strip of land at issue through adverse possession. The plaintiff subsequently appealed that ruling to the higher court.garden fence

In Paris, a hedge approximately three feet in width and four feet high straddled the boundary at issue from at least 1960 to 1999. The hedge was maintained exclusively by the defendant and his late father until 1999, when it was removed, and a six-foot-high wooden fence was installed. Between 1999 and 2007, neither the plaintiff nor the prior occupants of the plaintiff’s property sought the removal of the fence, which was built on the plaintiff’s property.

In Massachusetts, title by adverse possession can be acquired if the claimant establishes his or her non-permissive use of the property, which is actual, open, notorious, exclusive, and adverse for a period of 20 years. The lower court found that, as a result of the exclusive maintenance of the hedge by the defendant and his father, and in addition to the years in which the fence was present, the 20-year statutory period had been met. On appeal, the plaintiff argued that the mere maintenance of the branches of a hedge on a boundary line that overhangs neighboring property cannot amount to an act of exclusion that is sufficient to meet the requirements of adverse possession, at least with regard to the property underneath the branches.

Continue reading →

Published on:

Property disputes are not uncommon between landowners, particularly those with neighboring lots. The Massachusetts Land Court recently reviewed a real estate lawsuit between neighbors involving claims of record ownership and adverse possession in the case of Evans v. Jackson (Mass. Land Ct. June 15, 2016).adverse possession

In Evans, the defendants owned a parcel of land that was once a tidal pool but was filled in the 1920s. The plaintiff claimed that she had title to the filled flats of the pond abutting her property, which were currently being used and occupied by the defendants, since title was conveyed along with her property pursuant to an ordinance. The plaintiff sought a declaratory judgment to prevent the defendants from constructing an addition to their single-family home on the disputed area. The land court, however, ultimately held that the defendants have title to the flats, and in addition, they obtained title to the disputed area by adverse possession.

In Evans, the court first traced the extensive history of the property at issue, going back to 1872. The land court narrowed the issue to whether the disputed area was intended to be included in the conveyance of the residential lot to the defendants, or whether the grantors did not intend to convey this additional area along with the lot. Accordingly, the court engaged in an analysis of the deeds to determine record ownership.

Continue reading →

Published on:

Many legal disputes arise due to uncertainties concerning the ownership of land, particularly near property lines. In Salera v. Weinstein (Mass. Land Ct. Apr. 22, 2016), the plaintiff brought an action to try title, seeking a determination that a fence bordering the defendant’s property was located entirely within the plaintiff’s property, or alternatively that she had acquired ownership through adverse possession. The Massachusetts Land Court therefore decided the issue of the ownership of the fence that separated the plaintiff’s and defendant’s properties, and whether either of them established title by adverse possession of the fence or the surrounding land.tree-and-fence-1372218-640x480

Deeds of abutting properties may describe a common boundary line differently (e.g., giving it a different length, or referencing different monuments), creating ambiguity. But that ambiguity does not preclude the court’s ability to determine the location of that line, placing it wherever the totality of the evidence indicates. Massachusetts law does not require absolute certainty of proof to determine a boundary line, but merely a preponderance of the evidence. In Salera, the record owner of the land in dispute was ambiguous. However, after examining evidence that included deed descriptions, surveys, plans, and expert testimony, the land court found that the plaintiff was the record owner of the fence, and that the fence lay entirely within the plaintiff’s property.

Continue reading →

Published on:

Neighboring landowners often find themselves in boundary disputes regarding their property lines. In a recent decision, the Appeals Court of Massachusetts determined the issues of whether the plaintiffs had gained title to an area of property through adverse possession, and if so, whether they could hold the record landowners liable for trespass onto the parcel in dispute. In Owens v. Buccheri, 89 Mass. App. Ct. 1115 (2016), the land court determined that the plaintiffs established adverse possession of an area of which the defendants held record title. Although the defendants did enter the area to excavate and cut down trees, the land court judge declined to impose liability for trespass on a property of which they held record title. The plaintiffs appealed, contending that the judge erred in denying their trespass and nuisance claims.tree-1533498-640x480

In Massachusetts, title by adverse possession can be acquired only by proof of nonpermissive use that is actual, open, notorious, exclusive, and adverse for 20 years. The plaintiffs argued that since they adversely possessed the disputed area, they could maintain a trespass action against even the record title owner. The appeals court agreed, finding that the plaintiffs successfully established adverse possession of the land many years prior to the defendants’ entry. The court noted that the plaintiff’s testimony describing the nonpermissive and continuous activities of her now-deceased parents during her youth demonstrated that the period of adverse possession began sometime in 1969.

Continue reading →

Contact Information