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Tuesday, January 30, 2018

A Refresher on Adverse Possession and Prescriptive Easements


In thinking about the cases that we have handled over the past year when I was trying to determine a topic for this month’s newsletter
article, I realized that we have had a number of questions regarding adverse possession, most often in the context of boundary disputes. In each of the cases that we have handled, there has been a change in circumstance (most frequently, new ownership of either one or both of the properties involved), which have brought matters relating to location of fences and established uses to a head. While it is always exciting to share legal updates with our clients – as Dave Rogers does in his discussion of Trustees of the Cambridge Point Condominium Trust. v. Cambridge Point, LLC, in which the SJC struck down a so-called “poison-pill provision” for a condominium’s governing documents that sought to chill the condominium trust’s ability to litigate – in light of the frequent inquiries that we have received on the topic of adverse possession and boundary line disputes, I thought a refresher on adverse possession would prove beneficial. While many people are able to recite the requisite duration to establish adverse possession – 20 years – several of the other requirements to obtain title may not come to mind quite as readily. The common law doctrine of adverse possession, and the related doctrine of prescriptive easements, remain powerful mechanisms by which property interests may be altered.

Adverse Possession
To establish title to land by adverse possession, a party must demonstrate that each of the following is satisfied:
Actual Possession It may seem self-evident that in order to claim title by adverse possession, one must actually be in possession of the land to which he claims title. But what constitutes “actual” possession varies under the circumstances. “The nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put. Evidence insufficient to establish exclusive possession of a tract of vacant land in the country might be adequate proof of such possession of a lot in the center of a large city.”i The touchstone is thus whether the individual in possession is controlling the subject property in a manner similar to that usually associated with ownership.

Visible and Notorious Possession
The possessor’s occupation of the land must be open and notorious, so as to put the titled owner on notice of the hostile activity. “To be open the use must be made without attempted concealment. To be notorious it must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises.”iii Notably, there is no requirement that the true owner have actual notice of the use in order for the use to be deemed notorious.iii What is necessary, though, is that the use be “open to the world to see.”iv

Exclusive Possession
 The adverse possessor must hold the subject property to the exclusion of all others, including the true owner. The “gold standard” for establishing exclusivity is the erection and maintenance of a fence in a location such that it excludes the record owner from accessing the subject property.v

Continuity of Possession
 Possession of the subject property must be continuous for 20 years, with no significant interruption of possession. Continuity of possession must be viewed in light of the use to which the land would be normally used. For example, if an adverse possessor uses a seasonal cottage without heat for a period of 20 years, but is not present during the winter, such use may still be deemed continuous for purposes of satisfying this element. Similarly, the property need not be possessed by one individual for the entire period. Rather, where there is privity of estate between those in possession, the possessors may “tack” the time of occupation to each other to satisfy the 20-year requirement.

Hostile Character of Possession
 The use of the subject property must be without permission from the titled owner. “The essence of nonpermissive use is lack of consent from the true owner.” The inquiry into whether use is permissible or non-permissive is fact-intensive. “Whether a use is nonpermissible depends on many circumstances, including the character of the land, who benefited from the use of the land, the way the land was held and maintained, and the nature of the individual relationship between the parties claiming ownership.”vii
In ascertaining whether adverse possession has been established, the inquiry is largely fact-based, and different circumstances may produce unique results. However, there are a few additional things to keep in mind:

▪ Title to registered land (as compared to recorded land) cannot be acquired by adverse possession. Thus, even if each of the elements for establishing title by adverse possession are otherwise satisfied, the claim will fail.

▪ The intent of the adverse possessor is irrelevant. “[C]ourts must look to the physical facts of entry and possession as evidence of an intent to occupy and to hold property as of right.”viii

▪ Just like any other individual and/or entity, a condominium association has standing to bring a claim of title by adverse possession. ix

Prescriptive Easements
When one using certain land is unable to establish title due to a lack of exclusive use, he may still be able to establish an easement by prescription over the subject property, which enables him to continue to use the land consistent with his historic use. “It is not necessary … for one claiming an easement by prescription to show that his use has been ‘exclusive’ … .” In seeking to establish an easement by prescription, though, the location of the easement must be fixed. For example, if a party is seeking to establish use of a swath of land as a passageway, he must establish that the easement is “substantially confined to a regular and particularized route.”xi Aside from this, the requirements for establish a prescriptive easement largely mirror those required to establish title by adverse possession. Thus, a claim to a right to use by prescriptive easement may be advanced in the alternative to a principal claim for adverse possession.

As referenced above, many of the cases that we have recently had involving claims (or potential claims) of adverse possession have involved boundary line disputes that have been brought to a head in light of recent changes in circumstance, such as changes in ownership. As many owners desire to maintain friendly relationships with their neighbors, it is often a good first step to try to discuss each party’s expectations and understandings relative to the disputed property. However, as recently noted in a decision of the Land Court: “If good fences make good neighbors, sometimes bad fences can ruin a neighborly relationship.”xii When that happens, it likely makes sense to consult counsel. Cases involving claims to title and use run the gamut in terms of how they are resolved. While a letter or filing of a Complaint may be in and of itself sufficient to bring a neighbor to the table to reach reasonable resolution, other matters may lead to full litigation of the dispute.

The “refresher” information provided herein is intended to provide you with an overview of the doctrines of adverse possession and prescriptive easements, but is in no way intended to present a full treatise on the issues – it would take many more pages to do so.

If you think that you may have a matter implicating adverse possession or other claims concerning interests in real property, Moriarty Troyer & Malloy has substantial experience in these areas.


iLa Chance v. Rubashe, 301 Mass. 488, 490 (1938).
iiFoot v. Bauman, 333 Mass. 214, 218 (1955) (citation omitted).
iiiId.
ivLawrence v. Town of Concord, 439 Mass. 416, 423 (2003).
vSee, e.g., MacNevin v. Carroll, No. 15 MISC 000146 (HPS), 2016 WL 763073, at *4 (Mass. Land Ct. Feb. 25, 2016) (Speicher, J.).
viTotman v. Malloy, 431 Mass. 143, 145 (2000).
viiId.
viiiKendall v. Selvaggio, 413 Mass. 619, 624 (1992).
ixSee generally Sea Pines Condo. III Ass’n v. Steffens, 61 Mass. App. Ct. 828 (2004).
xLabounty v. Vickers, 352 Mass. 337, 34 (1967).
xiStone v. Perkins, 59 Mass. App. Ct. 265, 265 (2003).

xiiSerrano v. Brosnan, No. 14 MISC 482350 (HPS), 2016 WL 5900082, at *1 (Mass. Land Ct. Oct. 11, 2016) (Speicher, J.).

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