Articles Posted in Adverse Possession

When a driveway is shared by two neighboring properties, the owners’ legal right to use the driveway is commonly provided through an easement.  Overuse or obstruction of the driveway easement may lead the property owners to take legal action, as in an October 28, 2019 Massachusetts real estate case.

The plaintiff in the case had an express right-of-way easement, provided by deed, over ten feet of the defendants’ property.  The easement contained a paved driveway, which started at the street and extended the full length of the boundary line between the parties’ properties to the back of their lots.  The easement allowed the plaintiff to drive her vehicle from the street and over the driveway to the area behind her house, where her garage and off-street parking area were located.

When the defendants purchased the neighboring property in 2015, they began parking their two vehicles on the front part of the paved easement, bumper to bumper.  In addition, contractors and other invitees to the defendants’ house would also park there.  The plaintiff filed an action in Land Court, seeking a permanent injunction giving her full, unobstructed use of the entire right-of-way at all times, and prohibiting the defendants and their guests from parking on the driveway.

Continue Reading ›

In a Massachusetts real estate action, a claimant may assert multiple legal grounds to establish their ownership or other rights in a particular parcel of land.  In an October 24, 2019 case, the plaintiffs brought an action seeking an adjudication as to their easement rights over two beaches owned by the defendants.  Their claims were based on an express grant in their chain of title, as well as a prescriptive easement.

The parties in the case had a decades-long history in the area that began in their childhoods.  The plaintiffs had spent summers in the area with family friends, who were the prior owners of their property.  Beginning in the 1970s, the plaintiffs and their friends would use the entire portion of the beach, as there was no distinction made among the beaches within the layout of the adjacent properties at the time.  Following the death of the prior owner, the plaintiffs’ family acquired the property in 2000.  Thereafter, the plaintiffs and their families used the beaches whenever the weather permitted.

Starting in 2008, the defendants that owned one of the beaches in dispute reportedly posted “no trespassing” signs on the beach and sent no trespassing notices to the plaintiffs.  In 2011, the defendants installed a video surveillance system, which included a camera pointing at the beach.  In addition, the defendants began calling the police when they observed the plaintiffs on the beach.  The plaintiffs subsequently brought a legal action in Land Court to determine the parties’ respective rights in the area beaches, including a second beach belonging to another set of defendants.

Continue Reading ›

Issues concerning ownership and property boundaries may be brought before the Massachusetts Land Court to decide.  In an October 10, 2019 Massachusetts real estate case, multiple parties brought competing claims regarding their respective rights to a section of marshland on the coast of a peninsula.  The parties involved in the case were three neighbors who each owned separate properties that abutted the disputed area, and the local town.

The area in dispute was a strip of land between the high-water mark and the low water mark along a section of the coast of a peninsula.  The area itself was a salt marsh, covered in tall grass, deep mud, and completely underwater at high tide.  As such, it was unsuitable for use as a beach and enjoyed primarily as an area to look out over to see sunrises, bird migrations, and boats in the bay.

To determine the ownership issues, the Land Court first investigated the history of the initial partition and examined the descriptions contained the original deeds to the parties’ properties.  At one time, all of the land in the peninsula was communally owned by a Native American tribe.  In the mid-1800s, most of the land was partitioned into several tracts, with the exception of the marshland around the coast.  Years later, the marshland was gradually divided, and then subdivided into smaller set-offs.  The set-off descriptions in the deeds allowed the court to find that one of the plaintiffs held record title to part of the disputed area.  The court went on to identify the boundaries and record title locations of the marsh areas owned by the rest of the plaintiffs.

Continue Reading ›

A homeowner may file an action to quiet title in order to claim their ownership rights of the property in question.  In a September 4, 2019 Massachusetts property case, the plaintiffs brought an action in Land Court claiming ownership of a way that lined one side of their property.  The plaintiffs also sought a judgment that the defendant, a neighboring property owner, had no rights in or over the way.

The plaintiffs’ property consisted of nine row houses, which each row house having a separate entrance onto the way at issue.  When the plaintiffs acquired their property in 1985, there was a fence that separated the way from the defendants’ abutting property.  The fence was installed by the previous owner of the defendant’s property.  It was built ten feet high, and did not have a gate or any other opening to allow passage between the defendant’s property and the way.  In 2018, the plaintiffs replaced the fence after it was knocked down by a storm.

Pursuant to the Massachusetts derelict fee statute, a deed passing title to real estate that abuts a private or public way also conveys ownership to the centerline of the way if the grantor retains the property on the other side of the way, and if the deed does not expressly provide otherwise.  The Land Court concluded that, pursuant to the Massachusetts derelict fee statute, the deed to the plaintiffs’ property conveyed ownership up to the centerline of the way.  The issue, therefore, was whether the plaintiffs had ownership over the entire way through adverse possession.

Continue Reading ›

Gathering evidence to support an adverse possession action can be daunting, but a Massachusetts real estate lawyer can assist you in putting forth the strongest case possible.  The plaintiff in an August 29, 2019 case succeeded in establishing title by adverse possession to two separate areas of land abutting her property.  The Appeals Court of Massachusetts affirmed the decision of the lower court after examining the evidence she presented to make her case.

The plaintiff in the case purchased her home in 2000.  To the west and south, her property directly abutted an undeveloped, wooded land owned by the defendant.  The west area was a mowed, grassy area, with no permanent improvements.  The south area was largely covered by a paved basketball court, with one permanent post, backboard, and hoop.

The defendant did not dispute that the plaintiff had established the elements of adverse possession over the west and south areas during the 14 years that she has owned her property.  Rather, the question was whether the plaintiff could prove that the prior owner of her property had also met the required elements for the remaining 6 years, in order to establish a 20-year period of adverse possession.

Continue Reading ›

In many  adverse possession cases, the plaintiffs’ claim to property arises from a long-held, yet mistaken, belief that they own the land at issue.  This situation was presented in a May 28, 2019 Massachusetts real estate case before the Land Court.  The plaintiffs in the case filed an action against their neighbor, claiming title by adverse possession to a strip of land they had long believed was part of their property.

The land at issue in the case was a narrow, 13 foot wide strip of land on the side yard of the plaintiffs’ residence.  The plaintiffs’ property consisted of two lots, both of which had been owned by their parents, and before that, their grandparents.  From the time the second lot was conveyed to the plaintiffs’ family in 1949, they believed that two iron surveyors’ pipes marked the lot’s side boundary.  They cleared, used, and improved that area in the same ways they did for the rest of their property, fully incorporating it.

As a matter of record title, however, the plaintiffs were wrong about their ownership over the strip of land.  A survey of the lot conducted in 1948 had erroneously shifted its boundaries, and the two surveyors’ pipes were approximately 13 feet beyond the true record boundary of the second lot.  In fact, the record owner of the strip was the plaintiffs’ neighbor and the defendant in the case, who had acquired the adjacent lot in 1991.  The plaintiffs subsequently filed a claim in Land Court seeking a declaration that they acquired title to the strip by adverse possession.

Continue Reading ›

One of the most important factors in a Massachusetts prescriptive easement claim is whether the claimant’s use of the property was permissive or adverse.  The Land Court recently addressed this issue when deciding an April 5, 2019 case.  The plaintiff in the case sought to improve a section of a path located on the defendants’ property, claiming that he had the right to make improvements because he held a prescriptive easement over the path.

The defendants’ property and most of the surrounding land had traditionally been used for cranberry farming.  The path in dispute was part of a long-existing system of cart paths that wound through the fields to various ponds.  At present, part of the path was used as the defendants’ driveway and connected to the main road.

The plaintiff had a direct route to the main road as well, which was located entirely on his property.  However, rather than using that route, the plaintiff sought to improve and use the section of the path located on the defendants’ property and used as their driveway to access the main road.  The plaintiff asserted his rights to improve the path through a prescriptive easement claim.

Continue Reading ›

In some situations, a person may establish title by adverse possession in a legal action filed with the Massachusetts Land Court.  The plaintiffs in a March 4, 2019 Massachusetts adverse possession case claimed title to an additional eight foot wide strip of land along the eastern boundary of their property.  They brought the claim against their neighbors, who were the record owners of the area in dispute.

The portion of land claimed by the plaintiffs was not a unified area.  Essentially, it could be divided into three parts.  One section had been enclosed by the plaintiffs’ back yard fence until 2012 and encroached approximately 5 feet over the record boundary line.  The second section was not fenced or enclosed.  The plaintiffs claimed possession of this section because they regularly raked and mowed the area and the defendants had no physical presence in the area.  The third part consisted of 3 feet beyond the fence that had been erected and removed by the plaintiffs.

To acquire title by adverse possession in Massachusetts, the plaintiffs must show nonpermissive use of the property which is actual, open, notorious, exclusive and adverse for a continuous period of twenty years.  The acts that establish adverse possession must be changes to the land that demonstrate the control and dominion ordinarily associated with ownership, and so open and notorious that they may be presumed to have been known by the record owner.

Continue Reading ›

A poorly delineated property boundary in a densely populated neighborhood is a condition that often causes tension between neighbors.  This situation is what eventually led to the dispute between a business condominium association and a residential homeowner in a November 19, 2018 Massachusetts real estate case.  The defendant in the case lived behind the plaintiffs’ building, which was occupied by four commercial businesses.

A cinder block wall erected by the defendant’s father in 1976 had given rise to the misunderstandings that formed the basis of the dispute.  To delineate the higher grade of the driveway and prevent vehicles from falling off the side, the defendant’s father had made a wall with cinder blocks and stacked railroad ties.  The wall, however, had the appearance of a boundary fence.  The plaintiffs’ building was constructed thereafter, in 1981.  A land survey had recently confirmed that the defendant was the record owner of a narrow, triangular strip of land near the back of the plaintiffs’ property.  The plaintiffs then filed an action in Land Court for adverse possession, claiming ownership of the strip.

In Massachusetts, title by adverse possession can only be acquired with proof of nonpermissive use which is actual, open, notorious, exclusive, and adverse for an uninterrupted  period of twenty years.  After hearing testimony from witnesses and viewing the disputed area, the Land Court concluded that the plaintiffs had not established adverse possession of the entire disputed area.  The court explained that although a fence is ordinarily sufficient to demonstrate an adverse enclosure of land, the cinder block wall did not run the full length of the boundary, nor did it block any access to the disputed area.  The court also noted that the defendant regularly went over the wall for materials that he stored in the disputed area.

Continue Reading ›

A dispute between the title owner of a piece of land and an adverse possessor of land may be settled by the court in an action before the Massachusetts Land Court.  In a July 18, 2018 Massachusetts real estate case, the plaintiff sought to quiet title in the face of adverse possession assertions made by the defendants.  The defendants then counter-claimed with a suit for adverse possession of the parcel.  The matter went to trial and was decided by the land court.

The parcel at issue in the case was a vacant, one acre piece of land in Massachusetts.  The parties did not dispute that the plaintiff was the record owner of the parcel.  The central question in the case was whether the defendants had adversely possessed all or a portion of the one acre parcel.  In Massachusetts, title by adverse possession can be acquired only by proof of non-permissive use, which is actual, open, notorious, exclusive and adverse for twenty years.  The person claiming adverse possession, i.e., the defendants in the case, had the burden to prove that each of these elements continued uninterrupted for a period of at least twenty years.

The defendants had openly cultivated and farmed a significant portion of the parcel from 1992 to 2007.  The land court found, however, there was no evidence or testimony that the farming activity had continued past that.  Accordingly, the court held that the defendants’ farming activities, which continued uninterrupted for at most 16 yeas, was not sufficient to prove the twenty years required to establish title by adverse possession.

Continue Reading ›

Contact Information