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ADVERSE POSSESSION

Few things sour relations between neighbors as quickly as a boundary dispute. Determining common boundaries or establishing a property line with your neighbor is usually a matter of reviewing record title documents that set forth the metes and bounds of the properties, record plans and tax maps. However, over years of actual use, occupation, improvements, landscaping or fencing, complicated legal issues can arise affecting the ownership of boundaries and causing disputes between or among adjoining land owners. Despite plans and surveys and metes and bounds legal descriptions, ownership of land and the actual boundary line can be challenged in certain circumstances.  This happens with adjoining land owners throughout the North Shore including Danvers, Saugus, Lynn and Peabody.

commerce-acts-books-477966-mFor example, title to land can be acquired (or lost) if the land at issue is used in a particular way for a long time (no less than 20 years) by someone who is not the record owner.  This is known as the legal doctrine of adverse possession.

In Massachusetts title by adverse possession can be acquired by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years. A determination of adverse possession is fact driven and each element needs to be proven in court to have clear title through adverse possession. In the Commonwealth of Massachusetts, claims for adverse possession can be brought in the Land Court or the Superior Court in the county where the disputed land is situated. For instance, if the property is here in Lynnfield, an action for adverse possession may be commenced in the Land Court or the Essex County Superior Court.

Actual, open, notorious, and exclusive use of the disputed property is required to put the record owner of the property on notice of the adverse use of her land. The type of actual and open use of the disputed land that satisfies the requirements of adverse possession varies case by case. In one recent decision Mullins v. HD/MW Randolph Avenue, LLC, the Land Court ruled that the characteristics of the land in dispute must be considered in determining whether or not the claimant has shown “actual use” of the property.

In Mullins, the disputed land was approximately 8,600 square feet and partially wooded. The plaintiff owned property abutting the disputed land. He alleged that he and his predecessor in interest had used and maintained the disputed land since 1978 by cutting the grass on the cleared portion of the land and dumping leaves and grass clippings onto the wooded portion of the land. The Land Court held that the plaintiff’s limited acts of lawn maintenance alone did not rise to the level of actual and open use required to satisfy a claim of adverse possession. In support of its holding, the court noted that the disputed land was significant in size and perfectly conducive to numerous types of permanent improvement, alteration and use. The court emphasized that the plaintiff did not “transform the area”, for example by removing trees and brush or by planting trees or other vegetation.

Typically, adverse possession claims do not involve such a large tract of land. Claims of adverse possession may arise from a newly installed fence that is a few feet over what was understood to be the property line between neighbors or from the installation of a new driveway or swimming pool.

The Land Court differentiated the type of actual and open use necessary to adversely possess the large tract of disputed land in Mullins from the use that may satisfy a claim of adverse possession for a narrow strip of land. The court noted that the potential uses and improvements for a narrow strip of land may be limited.

The Land Court’s reasoning is applicable to the facts in 16 Shawmut Street LLC v. Piedmont Street LLC, a recent adverse possession case decided by the Massachusetts Appeals Court. In 16 Shawmut Street LLC, the land in dispute was a rough rectangle approximately 16 feet long and 2 feet wide, located in Boston’s south end. The disputed area was mostly dirt with a few plantings and was largely unimproved. The plaintiff only used the strip of disputed land as a garden space. The court in Shawmut, found that the plaintiff’s use of the disputed area for gardening purposes, in this scenario, constituted the type of “actual use” required for adverse possession.