Massachusetts Land Court Rules on Issues of Adverse Possession and Prescriptive Easement

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.

In Cappelluzzo, the court held that the plaintiff did not meet his burden of proof to establish adverse possession. The court found that the plaintiff failed to make any changes upon the land that would constitute sufficient control and dominion over the land such that they would be considered acts that are normally associated with ownership. Specifically, the fencing erected by the plaintiff had only been in place for seven years, not 20, and the plaintiff did not make any physical improvements of any kind that would put the defendant on notice that it had been ousted from the disputed area. As a result, the court ruled in favor of the defendant on the issue of adverse possession.

Under Massachusetts law, a plaintiff may be entitled to a prescriptive easement if it is shown by clear proof that the land has been used in a manner that is open, notorious, adverse to the owner, and continuous for a period of 20 years. In Cappelluzzo, the entrance to the plaintiff’s basement, while not on the disputed parcel, comes within just a couple inches of it, making it impossible to exit without walking over the disputed parcel of land. In addition, oil deliveries made once a month each winter involve the delivery truck pulling up to the disputed area and a delivery person walking over it. These and other activities, as well as the presence of underground utilities passing under the parcel, taken together, were held by the court to be sufficiently open, notorious, adverse, and continuous to give rise to a prescriptive easement. The court therefore ruled that the plaintiff had the right to pass over the disputed area for the purpose of accessing the basement, for oil and propane delivery, and for the presence of electric, telephone, and cable television lines.

At Pulgini & Norton, our skilled real estate attorneys provide legal advice for clients in a variety of Massachusetts property law matters, including land use and zoning issues, easements, and other land transactions. To discuss your real estate needs with one of our experienced attorneys, call (781) 843-2200 or contact us online.

More Blog Posts:

Appeals Court of Massachusetts Decides Easement Issue in Neighbors’ Dispute, Massachusetts Real Estate Lawyer Blog, published September 4, 2015

Massachusetts Land Owners Establish Prescriptive Easement to Use Driveway on Neighbors’ Land, Massachusetts Real Estate Lawyer Blog, published November 24, 2015

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