MA adverse possession attorney

Tales From The Boundary Line Trenches

by Rich Vetstein on January 31, 2016

41 Oakland Street image 3A picture is worth a thousand words.” – Old Photograph Found In Attic Key to Victory

I handle a fair amount of Massachusetts boundary line and adverse possession disputes. For those who don’t know, adverse possession is a legal doctrine in Massachusetts where one property owner can make a claim of ownership over his neighbor’s land if such use was “open, hostile, adverse, notorious and exclusive” for 20 or more years. These disputes often come up where neighbors don’t know the true location of their property line, and one neighbor puts up a fence, retaining wall or has essentially annexed the land of the other neighbor.

In my most recent case, I am defending a gentleman whose next door neighbor claims adverse possession to an area about 15 feet into my client’s side yard which includes a small portion of the neighbor’s driveway. The dispute arose because my client wanted to put up a 6 foot privacy fence along the lot line. The neighbor sued, asking the court for a preliminary injunction to stop the installation of the fence.

My opponent claimed adverse possession dating back to when he purchased the property in 1985. The first problem I had was that my client bought his property in 2009. Thus, in order to poke holes in the claimed 30 year period, I had to track down the former owners of his property. Luckily, I found them — a charming elderly couple living in Medway. I met them over the weekend and sat down at their kitchen table with the case file and photographs. They said my opponent was a liar and disputed virtually everything he said in his lawsuit.

The elderly man went up to his attic and found several old photographs showing his then young grandchildren playing in the sideyard. That’s the picture in this post. In the background of the photo dating back two decades, you can see a fence in the disputed side yard area. The fence essentially destroyed my opponent’s adverse possession claim because he was physically prevented from using the disputed area, and thus, could not prove 20 years of uninterrupted and adverse use. When I showed the photos to opposing counsel, the response was that his client didn’t remember the fence despite the fact it was there for at least 10 years of his ownership. How convenient!

After working all weekend on the case and armed with the photographs and affidavits from the prior owners, I felt optimistic heading into the injunction hearing before a judge in Norfolk Superior Court. In order to obtain an injunction, the plaintiff is required to show a “likelihood of success on the merits.” The bottom line was that I caught my opponent in a lie, given that he never disclosed the existence of the fence in his original complaint, then came up with the convenient excuse that he didn’t remember it. The judge ruled that the neighbor could not establish adverse possession at this juncture of the case, and denied his motion for an injunction.

As with every adverse possession case, relentless preparation and determination to investigate the history of the property is critical. I was more prepared than my opponent, and that is one of the reasons why I won this round.

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100316_photo_vetstein-2-150x150.pngIf you are dealing with a Massachusetts boundary or property line dispute involving adverse possession, please contact me at rvetstein@vetsteinlawgroup.com or 508-620-5253. I’ve handled scores of these cases successfully through trial and appeal.

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Click here to read about my most recent adverse possession trial victory.

Massachusetts Adverse Possession Law

Robert Frost ‘s famous poem The Mending Wall says “good fences make good neighbors.” When that fence encroaches over a neighbor’s property line, however, that good neighbor can turn nasty very quickly.

When boundary or encroachments disputes arise, a little known legal doctrine often comes into play:  adverse possession. Adverse possession is a common law concept in Massachusetts under which homeowners may lose title to their land by sleeping on their property rights for 20 consecutive years against a neighbor who has taken actions contrary to their property interests. Yes, a neighbor can effectively take over ownership of your land if you sleep on your rights. Massachusetts adverse possession law reflects a public policy aimed at inducing landowners to actively protect their land.

The classic example of adverse possession is a neighbor who puts up a fence or paves a driveway several feet over their neighbor’s property line, without permission, and this “adverse possession” continues without objection for 20 consecutive years.  Despite the fact that the neighbor’s fence or driveway encroaches the property line, under the adverse possession doctrine, the property owner may lose title to the disputed strip of land by not doing, saying or even knowing anything about it.

Requirements For Adverse Possession

A landowner can obtain adverse possession only by filing a lawsuit and establishing several elements of the claim.  (My property law professor used a handy acronym called OCEAN to help students remember them). The use of another’s land must be Open, Continuous (for 20 years), Exclusive, Adverse and Notorious. Each element has its own specific requirements, and all adverse possession cases are very fact-specific. The law does not favor adverse possession, so the burden of proof on the claimant is relatively high.

Adverse possession can also occur through multiple prior owners during the 20 year period under a theory called “tacking.” Adverse possession can also be in the form of an easement, or merely a right to use property, called a “prescriptive easement.” This could apply to the gamut of utility, pathway, or access easements.

Surveys and Stakes

Surveys typically form the genesis, and play an important role in, adverse possession cases. The parties must know where the true lot lines are on the property. Sometimes, there are disputes as to the survey in cases of old, poorly laid out lots. Remember that even if you believe the neighbor is wrong about the lot line, it is against the law in Massachusetts to remove survey stakes. (Mass. General Laws Chapter 266, Section 94).   Also under Massachusetts law, a surveyor is allowed to enter upon your land, with reasonable notice, for purposes of completing a survey.

Tips To Prevent Adverse Possession

The key to preventing adverse possession is to be proactive regarding your boundary lines and property rights. If you suspect an encroachment, obtain a full instrument survey, not a mortgage plot plan which can be inaccurate. If an encroachment is found, consult an attorney for further advice.

Generally, the most effective methods to prevent adverse possession are to:

  • Posting “No trespassing” signs (can be helpful, but is not fail-safe)
  • Physically demarcate lot lines with a fence, gate or the like (survey stakes alone may not be enough)
  • Document giving permission to an encroaching neighbor by written document or agreement
  • For prescriptive easements, record a statutory Notice to Prevent Acquisition of Easement. Note: this notice will not prevent a claim of adverse possession to the entire land.
  • Bring a lawsuit to “quiet title”
  • Submit your land to the Land Court registration system

The more land you own (especially raw woodlands) the more proactive you need to be.

Lastly, when buying new property, consider getting an enhanced title insurance policy which has coverage for encroachments and boundary issues, at a small premium over standard rates.

Adverse Possession Lawsuits

Given the high cost and low supply of land in Massachusetts, adverse possession disputes often wind up in litigation. Adverse possession litigation can be expensive because these cases are very fact-specific and require a fair amount of witnesses, factual investigation, title research, and even expert testimony. Adverse possession cases are generally difficult to win, but they can be successful with the right facts and good preparation.

The Massachusetts Land Court hears adverse possession cases along with the Superior Court. Depending on the facts of the case, the plaintiff can do a bit of “forum shopping” between the two courts.

Click here to read about my most recent adverse possession trial victory.
Click Play to listen to my radio broadcast on adverse possession
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Richard D. Vetstein, Esq. is an experienced Massachusetts adverse possession attorney who’s handled numerous adverse possession cases and trials in Land Court and Superior Court. Please contact me at rvetstein@vetsteinlawgroup.com or 508-620-5352 if you are dealing with a Massachusetts adverse possession dispute.

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