Massachusetts Real Estate Lawyer Blog
Many legal disputes arise due to uncertainties concerning the ownership of land, particularly near property lines. In Salera v. Weinstein (Mass. Land Ct. Apr. 22, 2016), the plaintiff brought an action to try title, seeking a determination that a fence bordering the defendant’s property was located entirely within the plaintiff’s property, or alternatively that she had acquired ownership through adverse possession. The Massachusetts Land Court therefore decided the issue of the ownership of the fence that separated the plaintiff’s and defendant’s properties, and whether either of them established title by adverse possession of the fence or the surrounding land.
Deeds of abutting properties may describe a common boundary line differently (e.g., giving it a different length, or referencing different monuments), creating ambiguity. But that ambiguity does not preclude the court’s ability to determine the location of that line, placing it wherever the totality of the evidence indicates. Massachusetts law does not require absolute certainty of proof to determine a boundary line, but merely a preponderance of the evidence. In Salera, the record owner of the land in dispute was ambiguous. However, after examining evidence that included deed descriptions, surveys, plans, and expert testimony, the land court found that the plaintiff was the record owner of the fence, and that the fence lay entirely within the plaintiff’s property.
The subsequent issue in Salera was whether the defendant had established title by adverse possession to the portion of the property between the fence and the boundary line. Title by adverse possession can be acquired only by proof of nonpermissive use that is actual, open, notorious, exclusive, and adverse for 20 years. The test for adverse possession is the degree and nature of control exercised over a disputed area, the character of the land, and the purposes for which the land is adapted. The burden of proof rests entirely on the claimant asserting title by adverse possession.
In Salera, the defendants had only lived on their property since 1998, and they relied on tacking to fulfill the 20-year statutory requirement. Tacking is the theory whereby adverse possessors in privity of estate with the claimant, i.e., the previous owners, may be tacked on to fulfill the required 20-year period. The defendants therefore provided direct testimony from the property’s predecessors regarding their use of the land. However, the land court held that the defendant failed to establish title by adverse possession. The court explained that although the defendant’s use of the property at issue had been actual, open, notorious, exclusive, and adverse, she had not used the area for the required 20 years, and the evidence of use by previous owners was not sufficient to satisfy the elements of adverse possession. In particular, the defendant’s direct predecessor testified that she did not use that section of the yard. As a result, any tacking as a result of the previous use was cut off by the non-use of the defendant’s predecessor.
If you have questions regarding your property rights in boundary disputes, the real estate attorneys at the Massachusetts firm of Pulgini & Norton can advise you of your legal options. We provide experienced representation to clients in a variety of property matters, including adverse possession, land use and zoning issues, easements, and other land transactions. To discuss your real estate needs with one of our skilled attorneys, call (781) 843-2200 or contact us online.
More Blog Posts:
Massachusetts Landowner Establishes Title to Fenced, Neighboring Property by Adverse Possession, Massachusetts Real Estate Lawyer Blog, published March 7, 2016
Massachusetts Land Court Rules on Issues of Adverse Possession and Prescriptive Easement, Massachusetts Real Estate Lawyer Blog, published December 15, 2015