Massachusetts Real Estate Lawyer Blog
Issues concerning ownership and property boundaries may be brought before the Massachusetts Land Court to decide. In an October 10, 2019 Massachusetts real estate case, multiple parties brought competing claims regarding their respective rights to a section of marshland on the coast of a peninsula. The parties involved in the case were three neighbors who each owned separate properties that abutted the disputed area, and the local town.
The area in dispute was a strip of land between the high-water mark and the low water mark along a section of the coast of a peninsula. The area itself was a salt marsh, covered in tall grass, deep mud, and completely underwater at high tide. As such, it was unsuitable for use as a beach and enjoyed primarily as an area to look out over to see sunrises, bird migrations, and boats in the bay.
To determine the ownership issues, the Land Court first investigated the history of the initial partition and examined the descriptions contained the original deeds to the parties’ properties. At one time, all of the land in the peninsula was communally owned by a Native American tribe. In the mid-1800s, most of the land was partitioned into several tracts, with the exception of the marshland around the coast. Years later, the marshland was gradually divided, and then subdivided into smaller set-offs. The set-off descriptions in the deeds allowed the court to find that one of the plaintiffs held record title to part of the disputed area. The court went on to identify the boundaries and record title locations of the marsh areas owned by the rest of the plaintiffs.
The court next addressed the adverse possession claims of the town and two of the three plaintiffs. In Massachusetts, title by adverse possession can be acquired only by proof of non-permissive use which is actual, open, notorious, exclusive and adverse for twenty continuous and uninterrupted years prior to the date the action was filed. The court concluded that the town did not meet its burden of proof to establish adverse possession, despite the town’s claims that it maintained the area as a public wetland, because it did not offer any evidence that it was in actual possession of the land.
The court did rule, however, that one set of plaintiffs held adverse possession title to the area of the marsh over which their dock extends. The court noted that the area had previously been occupied by a walkway constructed by the prior owner of the plaintiffs’ property in the late 1950s. The court found that the walkway had remained in place and in continuous active use by the plaintiffs’ predecessors for twenty years prior to 1981, until it fell into disrepair. As such, they succeeded in establishing their adverse possession claim.
At Pulgini & Norton, our Massachusetts real estate attorneys handle a wide-range of legal matters concerning residential property. We can provide knowledgeable advice about property tax liens, mortgage re-financing, easement rights, quiet title actions, foreclosure notices, and many other Massachusetts residential real estate transactions. If you are seeking guidance from an experienced property lawyer, contact Pulgini & Norton online or call our office at (781) 843-2200 and request a free consultation.