Adverse Possession

After Discovering Accurate Boundaries, Massachusetts Landowners Litigate Adverse Possession Claim

Published on: April 12, 2018 | by Pulgini & Norton, LLP

After a land survey revealed new information regarding the boundary line between two lots, two Massachusetts neighbors disagreed over how to handle ownership of that area. In an April 3, 2018 Massachusetts real estate case, the plaintiff filed an action in the Massachusetts Land Court asserting that she had acquired adverse possession of the area in dispute. A two-day trial was conducted, in which the parties presented evidence to support their positions.

The plaintiff in the case purchased her lot in 1985. A dirt driveway was located on her lot at the time she moved in, and in 1987 she had it paved. However, a section of the driveway, a sloped area at the bottom of the driveway, and a wooded area, all of which the plaintiff believed were on her property, in fact were encroaching on two other lots owed by another individual. Eventually, that individual sold one of the lots to the defendants in 2007. As soon as they moved in, the defendants began clearing and maintaining the wooded and sloped areas, apparently without knowledge of the exact boundary of their own lot and without knowledge of the existence of the second lot retained by the individual from whom they purchased their lot.

The relationship between the plaintiff and the defendants began to deteriorate after the plaintiff began the teardown and construction of her house in 2011. Concerned about disruption from the construction, the defendants conducted some research and discovered the existence of the seller’s second lot. The defendants reached out to the seller and acquired the second lot in 2011. The defendants then hired a surveyor and marked the boundary of their property. After a heated argument, the plaintiff continued construction on the property and additionally filed a claim for adverse possession of the area in dispute.

Massachusetts Adverse Possession Claim Defeated After Record Owner Files Petition to Register Title

Published on: January 23, 2018 | by Pulgini & Norton, LLP

To succeed in a Massachusetts adverse possession claim, the claimant must prove all of the elements required to establish his or her claim to a particular portion of land. In a January 19, 2018 case, the land court considered a claim of adverse possession by an abutting landowner and claims to confirm title initially filed by a mobile home park company and followed by a substitute petitioner. The history of the legal proceedings made it difficult to determine whether the landowner had established continuous possession of the area for the requisite period.

The mobile home company had commenced the original action in 1995, seeking to confirm title. That action remained pending until, due to a dispute concerning whether the landowner had been properly served with the petition, special notice was sent to the landowner in 2006. The landowner filed an answer, claiming title to a portion of the land based on adverse possession. His claim was based on acts of adverse possession beginning in 1985, after he purchased his property. The action continued to remain pending until 2018, when it came before the land court.

In Massachusetts, adverse possession can be acquired by proof of non-permissive use that is actual, open, notorious, exclusive, and adverse for a 20-year period. The burden is on the party claiming adverse possession to provide clear proof of each element. In the case, the landowner alleged that he staked a perimeter around his property, which included the land at issue, when he purchased the property in 1985. He also planted trees in that area to be sold as Christmas trees, cleared land, allowed hunters to use the property, informed others the land was his, and posted no trespassing signs. His activities continued to the time of the land court’s decision.

Massachusetts Homeowners Acquire Ownership Rights to Portion of Neighbor’s Lot

Published on: November 27, 2017 | by Pulgini & Norton, LLP

Confusion over boundary lines and property ownership can eventually lead to a legal action filed before a court. Many Massachusetts adverse possession claims are argued before the Massachusetts Land Court, which shares jurisdiction with other courts over most real property cases in the state. In a August 29, 2017 decision, the Land Court considered the plaintiffs’ claim that they had acquired portions of the defendant’s neighboring property, which consisted of a narrow strip of land bordering their lot and a concrete pad adjacent to that strip.

In Massachusetts, title by adverse possession can be acquired if the claimant establishes, with clear proof, non-permissive use, which is actual, open and notorious, exclusive, and adverse for a period of 20 years.

The strip of land at issue in the case contained a pathway, retaining walls and low stone structures, a fence, and vegetation planted by the plaintiffs. The Land Court found that the plaintiffs’ improvements and maintenance of the pathway and planting bed area were sufficient to constitute actual use for the purposes of adverse possession. Specifically, the plaintiffs’ construction of a rock wall, retaining walls, and fence were permanent improvements to the property ordinarily associated with ownership. The court also held that the fence and stone walls surrounding the strip were sufficient to show that the plaintiffs’ use of the area was open and notorious, thereby putting the record owner on notice of their claim to the area, as well as exclusive. The court explained that the fence enclosed the cleared pathway and planting bed area as if it was an extension of the plaintiffs’ property. Finally, evidence that the plaintiffs had used the strip of land since they had moved into their house in 1982 satisfied the 20-year required period of possession. Accordingly, the court ruled that the plaintiffs had established their ownership of that narrow area by adverse possession.

Massachusetts Church and Town Dispute Ownership of Cemetery Land Conveyed in 1743 Deed

Published on: November 20, 2017 | by Pulgini & Norton, LLP

Many Massachusetts property owners will discover that their property lines were drawn hundreds of years ago, with boundaries that are not clearly described or marked in the original and successive deeds. A Massachusetts real estate attorney can provide legal guidance regarding disputes that arise under these circumstances. An August 18, 2017 case demonstrates this issue in a land action between a Church and local Town.

Most Massachusetts towns were chartered before church and state were separated in 1833, when towns were chartered in order to support a church congregation. In the case, the Church was built on land conveyed in 1743. At issue was the ownership of the land on which the adjacent cemetery was located. The dispute arose after the Town announced its intention to move the cremains buried in one portion of the cemetery to another area in the cemetery. The Town asserted that it has record title to the cemetery through the 1743 deed. The Church also claimed that it holds record title pursuant to the 1743 deed, an 1899 deed, or in the alternative, through adverse possession.

Since the case involved the interpretation of conveyances in 1743 and 1899 by people who were no longer living, the parties agreed to present their arguments on a case-stated basis with the court allowed to draw appropriate inferences from only the available evidence and make its ruling. In these types of cases, the parties agree on all of the material facts from which the judge may draw inferences.

Massachusetts Plaintiff Prevails on Appeal in Adverse Possession Claim Over Walled-In Patio Area

Published on: July 3, 2017 | by Pulgini & Norton, LLP

Generally, any party to a lawsuit can appeal an unfavorable decision by a lower court or another local authority. In a Massachusetts adverse possession decision released on July 24, 2017, the Appeals Court of Massachusetts reviewed a ruling of the land court in an appeal filed by the plaintiff. The plaintiff in the case had claimed title by adverse possession to a narrow strip of land within a walled-in courtyard area behind a building on the property. The disputed area was the two feet along the rear end of the plaintiff’s enclosed courtyard and was used as an outdoor space and for gardening, containing mostly dirt and plantings, including two small trees.

The land court had ruled that the plaintiff used and occupied the disputed area for gardening purposes continuously, openly, and notoriously since 1985, entitling the plaintiff to a prescriptive easement over the disputed area. The land court also ruled that the plaintiff did not have title to the disputed area, however, since its use of the disputed area was not exclusive. In particular, the land court found that the defendant repaired the retaining wall and exterminated vermin in the disputed area. As a result, the issue on appeal was whether or not the plaintiff’s use of the disputed area was exclusive.

After reviewing the evidence, the appeals court concluded that there was no evidence to support the lower court’s finding that the defendant regularly maintained and inspected the retaining walls and chain link fence bordering the rear of the courtyard, and therefore accessed the disputed area, at any point during the previous 20 years. The appeals court pointed to testimony from the previous owner of the plaintiff’s property, who stated that no repairs had been made to the walls or fence during his ownership. Without any evidence to rebut the testimony, the appeals court held that the land court’s inference that the defendant entered the disputed area for this purpose was unreasonable.

Massachusetts Court Determines Non-Owner’s Right to Use Abandoned Telephone Easement

Published on: May 22, 2017 | by Pulgini & Norton, LLP

Typically, a person who claims a right to use a certain portion of property owned by the title holder will typically file an action to acquire legal recognition of that right. The Massachusetts Land Court decided a case on May 1, 2017 involving the plaintiff’s claim of a prescriptive easement appurtenant to land owned by the defendants. The portion claimed was over a cleared strip of land, visible on the ground, running from the public road through the defendants’ parcel to the plaintiff’s property. The parties agreed that the plaintiff had acquired at least a partial fractional interest in the path that ran over the defendants’ land, but the nature and scope of that path was in dispute.

To establish a prescriptive easement in Massachusetts, a claimant must show the (1) continuous and uninterrupted, (2) open and notorious, and (3) adverse use of another party’s land (4) for a period of not less than 20 years. The easement claimed is limited to the uses actually made of the section of property that meet those elements. The burden is on the claimant to provide clear proof of each element.

The path at issue in the case was a six-foot wide dirt pathway that traveled in a straight line, without regard to topography. Roots, stumps, and rocks had been left in the path. At trial, the plaintiff testified that he did not create the path, nor had he ever maintained or cleared it. Instead, the path had originated as a telephone line easement, which had been cut through the woods by the phone company. By 1929, however, the telephone company had abandoned the easement, and the poles and wires were removed.

Massachusetts Land Court Denies Non-Owner’s Claim of Prescriptive Rights in Beach Property

Published on: May 1, 2017 | by Pulgini & Norton, LLP

The Massachusetts Land Court issued a decision on April 19, 2017 settling a long-running real estate dispute involving the plaintiffs’ claim to a 1.7-mile stretch of beach on the south shore of Martha’s Vineyard. The court had previously determined that the plaintiffs did not have a title interest in the beach as it currently exists because, due to a combination of sea level rise, waves, tides, storms, and winds, their title interest was to a beach now submerged under the Atlantic Ocean. The issue before the court now was whether the plaintiffs had acquired prescriptive rights to use the entire beach throughout the year, in common with all others legally entitled to use it.

In Massachusetts, an easement by prescription is acquired by the continuous and uninterrupted, open and notorious, and adverse use of another party’s land for a period of not less than 20 years. The plaintiffs in this case claimed to have used the entire 1.7-mile length of beach adversely, notoriously, and continuously since at least 1938. In support of their claim, the plaintiffs relied on an accumulation of various uses and activities conducted by numerous members of their family, their tenants, and guests in the years between 1938 and 1999, in several locations on the beach. These uses included swimming, sunbathing, clamming, and picnicking during the summer season, in addition to riding in vehicles and on horseback, fishing, duck hunting, and surfcasting throughout different seasons of the year.

The court concluded that the evidence was sufficient to show that the plaintiffs’ use of the beach was open and notorious, since they made no attempt to conceal their use of the beach during the relevant time period, and the defendants actually knew about it and saw the plaintiffs use it. The court found that the plaintiffs’ use was adverse in that they used the beach believing that it was their right to do so, and they did not seek or obtain permission from the defendants to use the beach.

Massachusetts Land Court Explains Requirements for Acquiring Wooded Land by Adverse Possession

Published on: April 10, 2017 | by Pulgini & Norton, LLP

Gaining title to property through adverse possession generally requires that certain legal elements be proven in court. The Massachusetts Land Court issued a decision on April 6, 2017, discussing the criteria for acquiring ownership in such a manner. In the case, the plaintiff claimed adverse possession of an 8,600-square foot, partially wooded rectangular parcel of land owned by the defendant, a real estate developer. The plaintiff alleged that his predecessor in title and he mowed and maintained the area in question from 1978 to the time of the present dispute, and, accordingly, he acquired title to that section of the defendant’s land by adverse possession.

In Massachusetts, title by adverse possession can be acquired only by proof of non-permissive use that is actual, open, notorious, exclusive, and adverse for 20 years. The burden of proving each element falls upon the party claiming title by adverse possession, i.e., the plaintiff in the case. To prove actual use, the plaintiff must establish changes upon the land that constitute sufficient control and dominion over the area, or, in other words, acts similar to those that are usually and ordinarily associated with ownership. Open and notorious use puts the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right. In addition, the plaintiff must be able to show a lack of consent from the true owner, rather than mere permission.

In considering the plaintiff’s claim, the Land Court explained that the particular acts that would be consistent with ownership and provide notice vary depending on the features of the land in dispute. In the case, part of the area claimed by the plaintiff contained numerous trees, with its surface covered with brush, weeds, and forest growth. The court found that the plaintiff’s intermittent actions of dumping leaves and grass clippings onto the wooded portion of the land was not evidence of actual use but instead the actions of a landowner attempting to place unwanted debris beyond the bounds of his own property.

Massachusetts Court Affirms Plaintiffs’ Legal Right to Use Beach Access Path On Defendants’ Property

Published on: March 13, 2017 | by Pulgini & Norton, LLP

In some situations, a well-traveled path through another’s personal property may give rise to an easement over time. In a case decided on March 7, 2017, the Appeals Court of Massachusetts reviewed whether the plaintiffs were entitled to use a path located on the defendants’ property in order to access a nearby beach. The case was on appeal following the Land Court’s decision finding that past use of the path by the plaintiffs and their predecessors had established a prescriptive easement over that portion of the defendants’ land.

The dispute originated during the previous ownership of the parties’ lots, which are located in two bordering subdivisions. When the defendants’ subdivision was initially developed, a road was installed for construction use to reach the public road. Thereafter, the same developer was hired to develop the plaintiff’s subdivision. The developer breached a wall that ran between the construction road, so equipment and materials used for the defendants’ subdivision could easily be brought into the plaintiffs’ subdivision.

Early purchasers of lots in the plaintiffs’ subdivision testified that residents would regularly walk and bike down the construction road to access the beach, although they were not granted explicit permission by the developer to use the road. In 1995, after the defendants acquired their lot, they installed a large boulder approximately four feet wide and four feet high at the northern entrance of the construction road, with an inscription that stated the road was a private way. Despite the sign, the defendants regularly observed people using the road to access the beach.

Massachusetts Landowner Files Suit After Neighbors Construct Fence

Published on: March 6, 2017 | by Pulgini & Norton, LLP

It is not unusual for legal disagreements to arise out of an easement or the permissible use of one’s property by non-owners. Recently, the Appeals Court of Massachusetts issued a January 30, 2017 decision in which it determined the rights of neighboring landowners over three disputed right of ways. The plaintiff initially brought the action against his neighbors in Land Court, seeking to restrain them from maintaining a fence on any portion of his property. The Land Court found that the neighbors did have rights to parts of the right of ways, but other parts had been partially extinguished by adverse possession. Both parties appealed that decision to the higher court for review.

The three right of ways at issue abutted or were in the vicinity of the parties’ properties, leading to a public road. After the defendants erected a fence, the plaintiff filed his action, claiming that the defendants’ fence blocked his right of ways, that he had ownership of the first and third right of way by adverse possession, and that he had acquired a prescriptive easement to turn around and park on certain sections of the defendants’ property.

The parties’ properties were originally part of a larger tract of land, which was divided into six lots in 1911. The 1911 plan revealed that the parties’ current lots would be landlocked without the first and third right of ways. In 1941, one of the lots was divided into northern and southern sections, owned by the defendants and the plaintiff, respectively. The 1941 deed granted an express access easement for the defendants’ lot to use the second right of way located on the plaintiff’s lot.