In denying the Plaintiff’s motion for
preliminary injunction, the Land Court held that the Plaintiff’s use of the
Disputed Area, consisting solely of lawn maintenance, was not open, adverse,
and exclusive to satisfy a claim for adverse possession.
The Plaintiff in this case continuously
resided on his property since approximately March 1990. Since such time, the
Disputed Area was marked by a shrub, tree, and a planting bed. The Plaintiff
alleged that at all times during his ownership, the Defendant LLC and its
predecessors occupied and maintained the planting bed, while the Plaintiff
occupied and maintained all the land to the right of the planting bed, to the
exclusion of all others. Specifically, the Plaintiff alleged that he and
professional landscapers engaged in the following acts on the Disputed Area:
weekly moving during the growing season, applying fertilizer, seeding, seasonal
clearing of leaves, removal of debris after storms, and seasonally watering
multiple times per week. The Plaintiff also engaged professional arborists who
had full access to and moved across the Disputed Area to tend to trees on the
Plaintiff’s property.
To support his position, the Plaintiff
relied upon the 2019 Appellate Court decision in Miller v. Abramson. In Miller,
the Appeals Court affirmed a judgment declaring that the Millers had acquired a
thin triangle of land, approximately 492 square feet in size, by adverse
possession. The Millers and their landscaping company mowed the lawn weekly and
performed typical residential landscaping work within the disputed area. On
appeal, the Abramson’s argued that lawn maintenance was insufficient to
establish adverse possession under Massachusetts law. The Appeals Court
disagreed,1 stating that Massachusetts law is more nuanced than that, and noted
that “the context supplied by the surrounding landscape is significant in an
adverse possession case — a use that is sufficient to establish ownership in a
densely populated neighborhood may be inadequate in an isolated, wooded
setting.” Id. at 833. Relying upon this premise, the Appeals Court held that
the Millers engaged in typical suburban lawncare that gave rise to ownership.
The Defendant LLC argued that although
lawn maintenance has been a factor in finding adverse possession, the courts
have generally relied on factors in addition to lawn maintenance to support an
adverse possessor’s claim. The Land Court agreed with the Defendant LLC and
held the Plaintiff’s lawn maintenance was not open and adverse. The court
wrote, “in every case that this court has reviewed, including those cited in
Mullins, factors in addition to lawn maintenance support the adverse
possessor’s claim.”
The court also held that the Plaintiff’s
lawn maintenance was not an exclusive use, further supporting the court’s
denial of injunctive relief. A use is exclusive if such use excludes not only
the owner of record title, but also all third parties to the extent that the
owner would have excluded them. Here, the Plaintiff did not take any steps that
would have precluded the use of the Disputed Area by others. In its analysis, the
court specifically noted that the Plaintiff did not fence off the Disputed
Area, erect any structures on the Disputed Area, plant trees or shrubs, or
incorporate the Disputed Area into his irrigation system. Further, the
Defendant LLC’s predecessor had engaged a landscaping company to perform spring
and fall cleanups every year from 2003 through 2018. The cleanup included the
Disputed Area where the landscaping company blew leaves and picked up sticks
and branches on the Disputed Area. By allowing others to go on to the Disputed
Area for lawn maintenance activities, the Plaintiff’s use was not exclusive.
The principal takeaway from the Geiger
decision is that if you are seeking ownership by or defending a claim for
adverse possession, simply mowing and yard maintenance may not be adequate to
establish adverse possession due to the fact-specific nature of each property
dispute. Thus, consultation with counsel in bringing and/or defending such a
claim is advised.
Liz is an associate in the litigation and
real estate departments of Moriarty, Troyer
& Malloy LLC. Liz concentrates her practice in
condominium and real estate litigation and zoning and land use matters. Prior
to joining MTM, Liz practiced in the litigation department for Steptoe and
Johnson PLLC in West Virginia representing clients in all phases of litigation. Liz can be contacted at elake@lawmtm.com
