Articles Posted in Adverse Possession

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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.

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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.

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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.

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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.

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After a land survey revealed new information regarding the boundary line between two lots, two Massachusetts neighbors disagreed over how to handle ownership of that area.  In an April 3, 2018 Massachusetts real estate case, the plaintiff filed an action in the Massachusetts Land Court asserting that she had acquired adverse possession of the area in dispute.  A two-day trial was conducted, in which the parties presented evidence to support their positions.

The plaintiff in the case purchased her lot in 1985.  A dirt driveway was located on her lot at the time she moved in, and in 1987 she had it paved.  However, a section of the driveway, a sloped area at the bottom of the driveway, and a wooded area, all of which the plaintiff believed were on her property, in fact were encroaching on two other lots owed by another individual.  Eventually, that individual sold one of the lots to the defendants in 2007.  As soon as they moved in, the defendants began clearing and maintaining the wooded and sloped areas, apparently without knowledge of the exact boundary of their own lot and without knowledge of the existence of the second lot retained by the individual from whom they purchased their lot.

The relationship between the plaintiff and the defendants began to deteriorate after the plaintiff began the teardown and construction of her house in 2011.  Concerned about disruption from the construction, the defendants conducted some research and discovered the existence of the seller’s second lot.  The defendants reached out to the seller and acquired the second lot in 2011.  The defendants then hired a surveyor and marked the boundary of their property.  After a heated argument, the plaintiff continued construction on the property and additionally filed a claim for adverse possession of the area in dispute.

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To succeed in a Massachusetts adverse possession claim, the claimant must prove all of the elements required to establish his or her claim to a particular portion of land.  In a January 19, 2018 case, the land court considered a claim of adverse possession by an abutting landowner and claims to confirm title initially filed by a mobile home park company and followed by a substitute petitioner.  The history of the legal proceedings made it difficult to determine whether the landowner had established continuous possession of the area for the requisite period.

The mobile home company had commenced the original action in 1995, seeking to confirm title.  That action remained pending until, due to a dispute concerning whether the landowner had been properly served with the petition, special notice was sent to the landowner in 2006.  The landowner filed an answer, claiming title to a portion of the land based on adverse possession.  His claim was based on acts of adverse possession beginning in 1985, after he purchased his property.  The action continued to remain pending until 2018, when it came before the land court.

In Massachusetts, adverse possession can be acquired by proof of non-permissive use that is actual, open, notorious, exclusive, and adverse for a 20-year period.  The burden is on the party claiming adverse possession to provide clear proof of each element.  In the case, the landowner alleged that he staked a perimeter around his property, which included the land at issue, when he purchased the property in 1985.  He also planted trees in that area to be sold as Christmas trees, cleared land, allowed hunters to use the property, informed others the land was his, and posted no trespassing signs.  His activities continued to the time of the land court’s decision.

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Confusion over boundary lines and property ownership can eventually lead to a legal action filed before a court.  Many Massachusetts adverse possession claims are argued before the Massachusetts Land Court, which shares jurisdiction with other courts over most real property cases in the state.  In a August 29, 2017 decision, the Land Court considered the plaintiffs’ claim that they had acquired portions of the defendant’s neighboring property, which consisted of a narrow strip of land bordering their lot and a concrete pad adjacent to that strip.

In Massachusetts, title by adverse possession can be acquired if the claimant establishes, with clear proof, non-permissive use, which is actual, open and notorious, exclusive, and adverse for a period of 20 years.

The strip of land at issue in the case contained a pathway, retaining walls and low stone structures, a fence, and vegetation planted by the plaintiffs.  The Land Court found that the plaintiffs’ improvements and maintenance of the pathway and planting bed area were sufficient to constitute actual use for the purposes of adverse possession.  Specifically, the plaintiffs’ construction of a rock wall, retaining walls, and fence were permanent improvements to the property ordinarily associated with ownership.  The court also held that the fence and stone walls surrounding the strip were sufficient to show that the plaintiffs’ use of the area was open and notorious, thereby putting the record owner on notice of their claim to the area, as well as exclusive.  The court explained that the fence enclosed the cleared pathway and planting bed area as if it was an extension of the plaintiffs’ property.  Finally, evidence that the plaintiffs had used the strip of land since they had moved into their house in 1982 satisfied the 20-year required period of possession.  Accordingly, the court ruled that the plaintiffs had established their ownership of that narrow area by adverse possession.

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Many Massachusetts property owners will discover that their property lines were drawn hundreds of years ago, with boundaries that are not clearly described or marked in the original and successive deeds.  A Massachusetts real estate attorney can provide legal guidance regarding disputes that arise under these circumstances.  An August 18, 2017 case demonstrates this issue in a land action between a Church and local Town.

Most Massachusetts towns were chartered before church and state were separated in 1833, when towns were chartered in order to support a church congregation.  In the case, the Church was built on land conveyed in 1743.  At issue was the ownership of the land on which the adjacent cemetery was located.  The dispute arose after the Town announced its intention to move the cremains buried in one portion of the cemetery to another area in the cemetery.  The Town asserted that it has record title to the cemetery through the 1743 deed.  The Church also claimed that it holds record title pursuant to the 1743 deed, an 1899 deed, or in the alternative, through adverse possession.

Since the case involved the interpretation of conveyances in 1743 and 1899 by people who were no longer living, the parties agreed to present their arguments on a case-stated basis with the court allowed to draw appropriate inferences from only the available evidence and make its ruling.  In these types of cases, the parties agree on all of the material facts from which the judge may draw inferences.

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Generally, any party to a lawsuit can appeal an unfavorable decision by a lower court or another local authority. In a Massachusetts adverse possession decision released on July 24, 2017, the Appeals Court of Massachusetts reviewed a ruling of the land court in an appeal filed by the plaintiff. The plaintiff in the case had claimed title by adverse possession to a narrow strip of land within a walled-in courtyard area behind a building on the property.  The disputed area was the two feet along the rear end of the plaintiff’s enclosed courtyard and was used as an outdoor space and for gardening, containing mostly dirt and plantings, including two small trees.

The land court had ruled that the plaintiff used and occupied the disputed area for gardening purposes continuously, openly, and notoriously since 1985, entitling the plaintiff to a prescriptive easement over the disputed area. The land court also ruled that the plaintiff did not have title to the disputed area, however, since its use of the disputed area was not exclusive. In particular, the land court found that the defendant repaired the retaining wall and exterminated vermin in the disputed area. As a result, the issue on appeal was whether or not the plaintiff’s use of the disputed area was exclusive.

After reviewing the evidence, the appeals court concluded that there was no evidence to support the lower court’s finding that the defendant regularly maintained and inspected the retaining walls and chain link fence bordering the rear of the courtyard, and therefore accessed the disputed area, at any point during the previous 20 years.  The appeals court pointed to testimony from the previous owner of the plaintiff’s property, who stated that no repairs had been made to the walls or fence during his ownership. Without any evidence to rebut the testimony, the appeals court held that the land court’s inference that the defendant entered the disputed area for this purpose was unreasonable.

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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.

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.

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