The Massachusetts Land Court recently issued an opinion concerning a real estate dispute between neighboring parties. In Doucette v. Nix, the plaintiff filed a claim for title based on adverse possession of a parcel of land located between his property and the property of the defendant, who is the record owner of the parcel. The court ultimately decided the matter in favor of the defendant, finding that the plaintiff did not meet his high burden of proof in order to establish that his possession of the parcel was continuous, hostile, open, actual, and exclusive.
In Massachusetts, claims of adverse possession are generally disfavored. The true owner of land may be deprived of her rights only upon a clear showing that adverse possession has been established. A claimant may only establish title to land owned by another through adverse possession if he can prove his non-permissive use of the land, which is actual, open, notorious, exclusive, and adverse for 20 years. The burden of proof for each element of adverse possession rests entirely on the person claiming title to the land.
In Doucette, the plaintiff argued a number of points in attempting to prove his adverse possession claim, including the use of a septic system, fill project, dog run, and storage of equipment on the property. The court was doubtful that the existence of a septic system on the disputed property could satisfy some elements of adverse possession, in that it is not obvious or open, and demonstrating adverse use would be difficult. Since the installation of the septic tank occurred 10 years ago, the court found that it did not meet the 20-year requirement under the law. The court also found that, although the fill project was an improvement, in that the plaintiff raised the topography of the disputed property, it was not performed over a continuous 20-year period. The court concluded that the dog run, which consisted of an overhead wire running through the disputed property, was not regular or obvious in any way, and furthermore the dog had no regular, confined, or real access to the area. The plaintiff’s last argument relied on the storage of ladders, construction equipment, and a boat on the disputed property. The court found that the “on and off,” seasonal storage of such items does not rise to the required level of actual and continuous use, and that acts of possession that are few, intermittent, and equivocal are insufficient to serve as a basis for adverse possession.
Finally, the court noted that the plaintiff had not established that he used the property exclusively. In Massachusetts, if the plaintiff uses the disputed land together with others, including the record owner, that will defeat the adverse possession claim. In Doucette, the disputed parcel was not enclosed or fenced, and there was no physical barrier to prevent others from using the area. Indeed, the court found that the defendant record owner used the area with some regularity, as well as other neighbors crossing the parcel to reach other destinations. Therefore, the court found firmly in favor of the defendant.
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More Blog Posts:
Appeals Court of Massachusetts Decides Easement Issue in Neighbors’ Dispute, Massachusetts Real Estate Lawyer Blog, published September 4, 2015
Massachusetts Appeals Court Affirms Finding of Abandoned Easement, Massachusetts Real Estate Lawyer Blog, published June 10, 2015