February 1, 2010

This Memorandum serves to outline and highlight how Goldman & Pease LLC can assist in the prompt resolution of curative title actions in the Land Court throughout the Commonwealth of Massachusetts, and to highlight the area of Adverse Possession in Massachusetts’ law as it relates to curative title actions.

I. ADVERSE POSSESSION CLAIMS IN MASSACHUSETTS

Many title disputes in Massachusetts arise through the assertion of an adverse possession claim. 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).

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.

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 and he must prove 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).As the recent 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.

II. Goldman & Pease Representation in Adverse Possession Cases

Goldman & Pease has represented numerous clients in the past on adverse possession related claims, and is currently representing property owners on a unique adverse possession claim where adverse possession has been asserted by both parties. In this interesting case, several parties own and reside 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 the passageway, effectively blocking the use of the passageway for the other owners. Both parties have taken the position that they have adversely possessed the passageway for a period of greater than 20 years, and as such have 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.

Goldman & Pease is unique in this area as it has the resources and expertise to handle any adverse possession claim, while simultaneously addressing the underlying title issues, such as a defective deed and/or mortgage. Goldman & Pease has developed a “Best Practices” for the resolution of title defects which effectively addresses any adverse possession or related claim while efficiently and cost effectively resolving the underlying title defect. This five step “Best Practices” concept developed by Goldman & Pease has allowed the firm to maintain close contact with all necessary parties, to promptly draft and/or acquire the necessary documents relevant to the curative title action, and most importantly, it has allowed Goldman & Pease to develop a professional rapport with the judges and clerks of the Massachusetts Land Court for an expedited title resolution.

Kindly contact our office to follow up regarding any questions you may have, and so that we can maintain and strengthen the good working relationship.

The Greater Boston real estate lawyers at Goldman & Pease, located in Needham, specialize in business law, real estate law, condo law, civil litigation, and estate planning and serve the greater Boston metro region including Alston, Arlington, Belmont, Brighton, Brookline, Cambridge, Canton, Dedham, Dover, Milton, Natick, Needham, Newton, Norwood, Waltham, Watertown, Wayland, Wellesley, Weston, West Roxbury, Westwood, and all of Massachusetts.