Articles Posted in Adverse Possession

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.

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.

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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.

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.

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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).

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.

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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.

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.

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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.

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.

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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.

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.

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In Cappelluzzo v. Rinkoo-Tei Realty, LLC, (Mass. Land Ct. Dec. 11, 2015), the Massachusetts Land Court was presented with a property dispute involving a parcel of land between the boundaries of the plaintiff and the defendant. The plaintiff lives next door to the defendant, which operates a restaurant and bar on its property. The plaintiff brought an action against the defendant, seeking to establish his rights to a narrow parcel of land in the record ownership of the defendant. His claim was based on the theories of adverse possession or prescriptive easement. The plaintiff also sought a determination that the defendant was trespassing on his land. The defendant, in turn, filed a counter-claim against the plaintiff for trespass. After a trial, the land court found that the plaintiff failed to establish ownership by adverse possession but that he had established certain rights of easement by prescription.

In Massachusetts, title by adverse possession can be acquired by proof of non-permissive use that is actual, open, notorious, exclusive, and adverse, for a period of 20 years. The determination of whether an activity constitutes adverse possession is inherently fact-specific. The court must look to the nature of the occupancy in relation to the character of the land, the purposes for which it is adapted, and the uses to which it has been put. Acts of possession that are few, intermittent, and unclear do not constitute adverse possession.

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The Massachusetts Land Court decided an easement dispute between two neighbors regarding a dirt driveway in Dunning v. Larsen (Mass. Land Ct. Oct. 8, 2015). The plaintiffs brought suit against their neighbors, seeking to establish rights in a path that leads from a private way to their property. The dirt path at issue is entirely within the bounds of the defendants’ property and is not itself a private way.

The court first examined whether the plaintiffs had a record easement over the dirt path by looking to the history of the property and the deed description. The grantor of the plaintiffs’ property had no ownership in the defendants’ property at the time he conveyed the right of way for the benefit of the plaintiffs’ property. Therefore, he could not grant an easement over the dirt drive contained within the defendants’ property. The court thus found that the plaintiffs had no record easement to use the dirt drive and no right to maintain utilities under the drive pursuant to G.L. c. 187, § 5. As a result, only the defendants have the right to use the dirt drive, unless the plaintiffs have a prescriptive easement.

To establish a prescriptive easement, a party must prove open, notorious, adverse, and continuous or uninterrupted use of the servient estate for a period of not less than 20 years. In Dunning, the court held that the plaintiffs did hold a prescriptive easement in the dirt drive. The court noted that the drive has existed since 1950 and has been used by the plaintiffs openly, notoriously, adversely, and continuously to travel to and from their property by vehicle, by bicycle, and on foot. The court found that the plaintiffs’ use of the drive has been visible to the public as well as the defendants since 1977. In addition, the plaintiffs believed that they had a record easement to use the drive, and they did not ask for permission from the defendants to use it, indicating that their possession was adverse.

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The Massachusetts Land Court recently issued an opinion concerning a real estate dispute between neighboring parties. In Doucette v. Nix, the plaintiff filed a claim for title based on adverse possession of a parcel of land located between his property and the property of the defendant, who is the record owner of the parcel. The court ultimately decided the matter in favor of the defendant, finding that the plaintiff did not meet his high burden of proof in order to establish that his possession of the parcel was continuous, hostile, open, actual, and exclusive.

In Massachusetts, claims of adverse possession are generally disfavored. The true owner of land may be deprived of her rights only upon a clear showing that adverse possession has been established. A claimant may only establish title to land owned by another through adverse possession if he can prove his non-permissive use of the land, which is actual, open, notorious, exclusive, and adverse for 20 years. The burden of proof for each element of adverse possession rests entirely on the person claiming title to the land.

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In a recently published opinion, the Massachusetts Court of Appeals examined the law of adverse possession and color of title claims in a property dispute surrounding natural, wild lands. In Paine v. Sexton, the plaintiffs sought to register nearly 36 acres of woodlands, based on adverse possession. The defendants argued that the plaintiffs could not establish adverse possession when they had not enclosed or cultivated the natural areas, and they also contended that the deed under which they claimed color of title did not have an adequate description to support their claim. The appeals court affirmed the decision of the trial court finding in favor of the plaintiffs.

Adverse Possession

In Paine v. Sexton, the plaintiffs had operated a commercial campground on the land since 1958. Although they had cleared campsites and added picnic tables, built an office building and bathroom facilities, erected some fencing, and made other improvements to the area, they did not enclose or cultivate the entire 36 acres in order to maintain privacy between campsites, as well as to preserve the naturally wooded condition of the grounds.

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