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An Introduction to Adverse Possession & Prescriptive Easements

Fences, driveways, structures, lawns, gardens, trees or shrubbery often extend beyond a deeded property line and encroach onto another's property. The area of land may only be a few feet wide or consist of an entire parcel. Depending on the duration and nature of the use in those areas, the person using the property of another may have a valid claim of ownership over the property (in fee simple) or some lesser degree of property rights (i.e. prescriptive easement).

Massachusetts recognizes the common law doctrine of adverse possession whereby a person can establish title in another's real property, provided that all necessary elements are met and adjudicated in court.

To prevail on a claim of adverse possession, the burden is on the claimant to prove use that is

· non-permissive;

· actual;

· open and notorious;

· exclusive; and

· adverse for twenty continuous (uninterrupted) years

See Lawrence v. Town of Concord, 439 Mass. 416 (2003) (quotation omitted); Kendall v. Selvaggio, 413 Mass. 619 (1992); M.G.L. c. 260, § 21. There is no requirement that the true owner of record receive actual notice of the use taking place on his property. If the use is "[o]pen and notorious . . . [it] is thus deemed to place the true owner on constructive notice of such use, and it is immaterial whether the true owner actually learns of that use or not." Lawrence, 439 Mass. at 422.

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, and so that it can place the record owner on notice that his property is being used adversely. 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.

Even if the claimant has not personally used the disputed area for the full twenty years, he may still prevail on his claim by taking advantage of the doctrine of "tacking". To accrue the requisite twenty years, he may "tack" his use of the disputed area to the period of adverse use of those in privity of estate with him (i.e. his predecessors in interest). In fact, it is possible that the elements of adverse possession were established long before the current claimant.

In those cases where the use has not been exclusive, the claimant may alternatively pursue a claim of prescriptive easement. A successful claim for prescriptive easement is identical to proving a claim for adverse possession, except for the element of exclusivity. See, e.g., Denardo v. Stanton, 74 Mass. App. Ct. 358 (2009). See also M.G.L. c. 187, § 2.

Regardless of whether it is a claim for adverse possession or prescriptive easement, at trial the claimant will be required to prove all elements before declaration of those rights can be rendered. The type of evidence favored by courts in these types of cases includes photographic evidence showing the use over twenty years; testimony offered by the claimant, predecessors in interest and neighbors about the nature and frequency of the use; and invoices/receipts for work, fencing or landscaping in the disputed area.

Moreover, it is equally important that the claimant be able to show that he was at all times acting without permission from the true owner of record and, for adverse possession cases only, using the area exclusively, because these two elements are often rebutted with evidence from the owner of record. If the claimant fails on any element of adverse possession or prescriptive easement claim, he will not be able to establish title or rights in the disputed area.

Written by Kristen M. Ploetz, Blog Editor

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

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