The elements of adverse possession and prescription are difficult to prove. They should be, given their impact on landowners.
In my experience defending against these claims, that difficulty must
be highlighted to the factfinder both through the evidence presented and the caselaw. While highlighting through the evidence is fundamental to defending the case, doing so through the caselaw is sometimes under-utilized.
Massachusetts law describes what is required for success on these theories as “clear proof” of the necessary elements by a preponderance of the evidence. While nothing more than a gloss on the preponderance standard, the “clear proof” component is important in practice and not to be forgotten.
The origin of “clear proof” is in older Massachusetts adverse possession cases. For example, the Supreme Judicial Court wrote in 1853’s Cook v. Babcock that the “true owner is not to be barred of his right except upon clear proof” of the elements of adverse possession.
The SJC reaffirmed this language in 1912’s Tinker v. Bessel, a case that continues to be cited in adverse possession decisions today. Several prescription cases have adopted the “clear proof” language from Tinker as well including well-known recent Appeals Court decisions like Boothroyd v. Bogartz and Houghton v. Johnson.
Skilled real estate litigators defending against these claims have grabbed hold of this unusual language. But those that have argued that “clear proof” heightens the burden beyond the traditional preponderance standard have done so at their own peril, and perhaps that of their clients.
This contention was rejected by the Appeals Court in 2010, as part of a Rule 1:28 decision, Conti v. Cormack. The court rebuffed the notion of a heightened burden of proof by borrowing the understanding of “clear proof” from another context and explaining that “while the finder of fact needs to give attention to each of the required elements and ensure that each of those elements has been met, the term ‘clear proof’ does not heighten the burden of proof.”
Conti appears to be a correct interpretation of Massachusetts law. As a result, the “clear proof” language is best understood in practice as instructing the factfinder of the need to carefully consider whether a preponderance exists for each of the applicable elements.
Neither theory involves some sort of a totality-of-the-circumstances test or a disjunctive analysis of factors. Instead, the claimant needs to clearly prove that it has shown all the applicable, conjunctive elements.
Counsel defending against these claims should use this “clear proof” language to highlight the inherit difficulty in establishing these theories. After all, demonstrating a preponderance on these elements is no easy task.
·
Consider trying
to convince a factfinder that nonpermissive use which is actual, open,
notorious, exclusive and adverse for 20 consecutive years is more likely or
probable than not despite any lingering doubts.
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In doing so,
remember that there is no room for guess, surmise, conjecture or speculation
and that equal chances of yes and no simply are not enough.
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And keep in mind
that there is a real difference between a possibility and a probability with
only the latter being sufficient to establish a preponderance of the evidence.
The recent Stevens v. Irving decision from the Land Court further illustrates this difficulty, even on something as straightforward as actual use. Although the plaintiff’s family had owned the abutting property since at least the 1950s, testimony about actual use of the disputed area as part of her adjacent driveway for parking was limited to stating that tenants had done so, but without any further elaboration as to the frequency or even location of the claimed use.
Judge Speicher was rightly unconvinced of actual use for the requisite 20 years.
“The testimony of the plaintiff and her son” he wrote, “was sufficiently vague on the topic of the location of parking in the driveway that I am unable to conclude that cars actually regularly used the disputed area; and given the physical configuration discussed above, I find it likely, and I so find, that the plaintiff failed to prove, by clear proof, that the disputed area was actually occupied and used for parking in other than perhaps, at best, an intermittent and occasional way.”
Convincing a factfinder of the absence of “clear proof” is not just a matter of the evidence presented as part of the defense against these claims, but it can be highlighted through the caselaw as well. The need for “clear proof” reinforces the demand for the factfinder to consider each element and determine if it is probable that its satisfied and not merely possible that it could be. Those defending against these claims should use it to their advantage.
Without heightening the burden of proof, the notion of “clear proof” reinforces the policy that adverse possession and prescription claims remain difficult to establish, as Stevens clearly illustrates. With a robust defense against these claims focused on both facts and law, the result is that they should be successful only in rare, clearly proven circumstances.
A member of the REBA Litigation Section,
Matt Furman concentrates his practice at Todd & Weld LLP in Boston on
complex commercial litigation. He has
extensively represented landowners in a wide variety of real estate conflicts,
including adverse possession and prescription claims. His email address is mfurman@toddweld.com.
