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
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.).
