By Howard Goldman
Neighborly relations may turn sour quickly when disputes arise over property boundaries. A deed alone will not protect you from boundary line disputes. A neighbor may assert an ownership claim over part of your land through a doctrine known as Adverse Possession. Some examples of Adverse Possession claims are as follows:
- A fence is mistakenly or even intentionally located several feet away from the boundary line. Over time, the property owners act as if the fence marks the boundary line, or property owners change and the new owners believe the fence marks the boundary line.
- You grant permission to a neighbor to build a retaining wall on your property to prevent land erosion and you also permit the neighbor to plant on top of the retaining wall. Over time, however, the property owners change or memories fade and now the neighbor asserts they own the land to the retaining wall.
- Your neighbor decides to enlarge his driveway but the extension encroaches onto your property.
If your neighbor successfully asserts adverse possession and you lose a portion of your property, the consequences could be catastrophic. Your property may no longer comply with certain local zoning setback and lot size requirements. This in turn, affects the marketability of your property.
1. What Exactly is Adverse Possession?
In Massachusetts, “[t]itle may be acquired by adverse possession only upon ‘proof of non-permissive use which is actual, open, notorious, exclusive and adverse for twenty years.’” Ryan v. Stavros, 348 Mass. 251, 262 (1964). This burden rests solely with person asserting adverse possession. Mendonca. v. Cities Serv. Oil Co. of Pa., 354 Mass. 323, 326 (1968). “The guiding principle behind the elements of adverse possession is not to ascertain the intent or state of mind of the adverse claimant, but rather to provide notice to the true owner, allowing for the legal vindication of property rights.” Totman v. Malloy, 431 Mass. 143, 145 (2000). The essence of non-permissive use is lack of consent from the true owner. Id.
A. Actual Possession
The nature and extent of occupancy required to establish a right by adverse possession varies with the character of the land, the purposes for which the land is adapted, and the uses to which the land has been put. For example, a Court may determine the evidence is insufficient to establish adverse possession over a vacant tract of land in the country but similar evidence may be sufficient in regard to a lot in the center of a large city. LaChance v. First National Bank and Trust, 301 Mass. 488, 490 (1938) (the building of a hen coop, filling in of land and erecting of stone wall sufficient on small parcel of land located on one of two adjoining lots near plaintiff’s dwelling was sufficient evidence).
B. Open and Notorious Possession
Because the trespass on the land of another does not amount to an ouster without the express or implied knowledge of the owner, it is an essential element of the claimant’s case that the acts done on the land were sufficiently notorious to warrant the jury or fact-finding judge in presuming that the owner had notice of them. Ordinarily, the use of property is open if made without attempted concealment, and it is notorious if it is known to persons who could reasonably be expected to notify the owner if he supervised the premises to a reasonable extent, but it is not necessary that the claimant show that the owner had actual knowledge of the use for it to be notorious.
C. Exclusive Possession
To acquire title by adverse possession, the claimant must prove that he had exclusive possession amounting to a wrongful dispossession of the property from the owner. Where the acts shown by the claimant are not such that they would amount to a wrongful dispossession of the property from the owner, proof that the acts were known by and were not objected to by the owner does not make the acts any more effectual and they are not sufficient to prove adverse possession. Hence, the claimant does not sustain his burden of proof where he shows a concurrent possession of land with the owner.
D. Duration and Continuity of Possession
Land must be held adversely for twenty years in order to acquire title to it. The problem, however, is more often the proof required to establish the beginning of the adverse possession, the tacking of successive possessions, and whether the possession is continuous and uninterrupted. The person proving title by adverse possession may include the possession of his predecessor-in-title, which has been transferred to him, but the previous possession cannot be tacked if there is not privity of title between the successive occupiers of the property.
E. Non-permissive Possession
To acquire title by adverse possession, the claimant must prove that his possession was under a claim of right or title, or with an intention to take appropriate and hold the same as owner and to the exclusion, rightfully or wrongfully, of everyone else. It follows that where the entry or use is permissive or under a license, the possession is not hostile or adverse to the true owner. Permissive use, however, that is based upon the mistaken belief as to the location of a boundary line does not defeat a claim of adverse possession.
Cases in this area can become complex and often implicate title insurance policies as the underlying problem giving rise to the adverse possession claim is frequently due to a defective deed. In this regard, Massachusetts’ Courts have held that, “[w]hen . . . someone enters land under color of title based on a defective deed, possession of only a portion of the land will be seen as constructive possession of the whole conveyed in the defective deed.” St. Yves v. Crowninshield, Mass. Land. Ct. (2008). St. Yves case makes clear, a curative title action may require addressing not only the primary adverse possession claim, but also the underlying title defect issues.
2. The Consequences of Adverse Possession
Unfortunately, neighbor disputes over title to property occur frequently. Land ownership disputes can arise between two business owners, two homeowners or even between a business owner and homeowner. If not resolved in your favor, the outcome of such disputes can be costly. You could lose part of your land to your neighbor. If this occurs, your property may no longer comply with certain setback requirements of local zoning ordinances. This in turn, affects the marketability of your property. In other instances, strangers could legally pass through your property without your permission. This is why retaining legal counsel is so important.
3. Recommended Steps to Protect Your Ownership Rights of Property
a. If a neighbor is using part of your land, approach your neighbor in person about use of your land. This is the best approach if you are on friendly terms. Remind the neighbor of the location of the boundary line. Follow up with a nice letter confirming your conversation and state whether you will continue to grant permission to use the land or whether you withdraw permission to use the land. Keep this letter in your files. Why should you do this when there is no current dispute? Land ownership changes frequently and unexpectedly for many reasons: sale, foreclosure, death, divorce, etc. The next owner or even a remaining owner may assert adverse possession at any time.
b. Enter an agreement between the property owners. One property owner may retain the land and possibly grant a license or easement to the neighbor permitting use. In other instances, the property owners may agree to a co-existing easement. You will need to hire a licensed land surveyor to prepare a plan of the land for this agreement. Be certain to retain legal counsel with real estate expertise to prepare a license and/or easement agreement, which can be quite complicated.
c. You may want to consider placing or relocating a fence directly next to or even along the boundary line. Prior to doing so: (a) speak to your local building inspector regarding fence height, location and any other requirements to ensure compliance with the local zoning ordinances, (b) speak to your neighbor before installing or moving a fence to confirm agreement of the boundary line, and (c) hire a land surveyor to stake out the boundary line to guide the fence installation.
e. When owners cannot resolve the dispute over land, a claim to quiet title may be filed in superior court or the land court. However, the land court is the recommended venue as the judges will have expertise in real estate matters. Retaining legal counsel is strongly recommended before filing such a complicated action in court.
4. Expertise of Goldman & Pease in Adverse Possession Disputes
Goldman & Pease has successfully represented numerous clients on adverse possession related claims. Some examples of adverse possession claims:
- Adverse possession had been asserted by both property owners. In this interesting case, several parties owned and resided in attached brick row houses, with an eight-foot-wide passageway that runs around the houses. Sometime in 2007 one of the parties (the insured) fenced and gated a portion of the passageway, effectively blocking the use of the passageway for the other owners. Both parties had taken the position that they had adversely possessed the passageway for a period of greater than 20 years, and as such had acquired title to the passageway through adverse possession. But since use of the private passageways was a deeded right in all abutting owners, the use was permissive and not adverse.
- New owners of a beachfront property received notice from the local beach association claiming that the beach association owned a portion of their property adjacent to the waterfront. The beach association sought to utilize a path through the beachfront property to the beach for anyone residing in the community, and their guests. Unfortunately, the beachfront property deed contained a vague legal description for the waterfront portion of the property that made the legal boundary line unclear. Goldman & Pease asserted adverse possession over the beachfront property on behalf of the new owners. Goldman & Pease established adverse possession through affidavits of the current and prior beachfront property owners as well as old photographs of the well-maintained beachfront property by said owners.
- A residential homeowner desired to improve her property and build a new retaining wall on her property. A neighbor asserted adverse possession over the land from the retaining wall to the boundary line to prevent the homeowner from building a new retaining wall. The abutting property owner claimed she had planted shrubbery in the area and maintained the area without permission, openly, notoriously, exclusively and adversely for twenty years. Goldman & Pease successfully negotiated a resolution in which the abuting property owner dropped all claims of adverse possession. Goldman & Pease established that the neighbors had jointly used the contested area.
- A property owner sought to remove several trees on her property and contacted her neighbor to advise her of the tree removal. The neighbor surprisingly claimed she owned the property where the trees were located through adverse possession. Ultimately, the neighbor dismissed her claim of adverse possession once Goldman & Pease established lack of exclusive control over the trees.
*About the Authors
Attorney Howard S. Goldman is the founding partner of the law firm of Goldman & Pease LLC, 160 Gould Street, Needham, Massachusetts 02494 (781) 292-1080. Mr. Goldman concentrates his practice in the areas of real estate, finance, and civil litigation, where he represents property managers, lending institutions, developers, and contractors for more than thirty years. He is an active member of the Massachusetts, Norfolk, and Rhode Island Bar Associations in his field and is also an active member of CAI and IREM, where he frequently lectures and writes columns affecting the real estate and finance industries. Mr. Goldman serves as a member of the Zoning Board of Appeals for the Town of Needham and as a court appointed mediator at the Boston Municipal Court and as a pro bono advocate at Federal District Court mediations. Associate Tracy L. Davis assisted in drafting this article and focuses her practice in the areas of real estate litigation, including adverse possession and landlord/tenant matters, and business litigation involving complex business disputes.
