Winter 2013: Real Estate Law – Adverse Possession

What happens when your fence, driveway, or landscaped garden is determined to be over your property line and encroaching on your neighbor’s property or when your neighbor is encroaching on your property?

Massachusetts courts have long recognized the common law doctrine of adverse possession, whereby a person can establish title in another’s real property. To prevail on a claim of adverse possession, the burden is on the claimant to prove that the use of the property in question is open, continuous for 20 years, exclusive, adverse and notorious. See, for example, Ryan v. Stavros, 348 Mass. 251 (1964).

While the adverse use can be without the owner’s actual knowledge, the use of the property must be notorious (i.e. not hidden), and in order to prevail in securing title to the property in question, the party claiming the property must file an action against the purported property owner.

Adverse possession cases are highly fact-specific and depend on the character of the land and its surroundings. The intensity of use varies among adverse possession cases because the use must be equivalent to an exercise of dominion and control over the land that is consistent with typical land ownership. For example, the type of actual use that may be sufficient to prevail on an adverse possession claim in an unpopulated, rural or forested area will be quite different than the type of use that will be required in a busy urban area. In some cases, fencing in the land may be sufficient, whereas in other cases the court may require a showing of more extensive, active use such as frequent mowing, snow removal or parking cars.

In addition, even if the claimant has not personally used the disputed area for the full 20 years, he or she may still prevail on his or her claim by taking advantage of the doctrine of “tacking.” This refers to being able to claim that the prior owner’s use was consistent with the claimant’s use and, therefore, should be “tacked on” to the current owner’s use.