MA adverse possession

property-line-survey-getty_f11341f289ae931d07403cac3726db78_3x2_jpg_300x200_q85Trial Report: Winiker v. Bell (Middlesex Superior Court CA 09-907)

I was lead trial counsel in a week-long adverse possession/boundary line dispute case back in August in Middlesex Superior Court before Judge Bruce Henry. We had closing arguments last week, and the judge’s decision just came down. I’m thrilled to report that we prevailed! Hard work (lots of it) does indeed pay off…

Judge Henry drafted a 13-page well-reasoned opinion, which I’ve embedded below. By and large, the judge accepted my view of the facts and the law, and cited many of the cases which I referenced in my briefs. The claimants, having been unable to establish adverse possession, were ordered by the judge to remove their driveway and retaining wall which encroaches onto my client’s property.

Some take-aways from the case:

  • Prepare, prepare, prepare. I had a lot more work on my side, with 8 testifying witnesses and a binder full of exhibits. I prepared for a solid two weeks before this trial, and by the trial, I knew every blade of grass and rock on the disputed area. I also had deposition testimony of the claimants which I used to impeach them when they inevitably changed their stories or failed to remember key details. I also had blowups of aerial photos of the property which were very helpful. Lastly, I convinced the trial judge to take a “view” of the property, so he could see the layout of the property himself. My opponent had much more trial experience than me, so I had to overcompensate by knowing the facts and law inside and out.
  • Track down old owners. Since my opponents were claiming adverse possession going back to the 1960’s, the first and most important thing we had to do was to track down all the old owners of my client’s property, and put together an accurate historical timeline of the property. Including my client, there were seven owners of the property! This was the only way my client could mount a defense against the claim. One of the old owners lived in Florida, and he came up to testify about having pig roasts near the disputed area, among other stories. Other former owners testified and a few were not exactly thrilled to be dragged into court.
  • Establish a theory of the case. Going into the trial, I knew that the claimants’ use of the disputed property — lawn mowing, landscaping, storing construction materials and snow plowing — was arguably not strong enough to establish adverse possession. I also knew that they did nothing to prevent the owners of my client’s property from accessing the disputed area. I hammered them continuously on each of the required elements of adverse possession, eventually punching holes in the foundation of their case. I also had to be a bit ruthless. My opponents’ age was in their 70’s, so I had to exploit their memory lapses. An amusing moment was when the husband produced an old photo of his 3 kids, but when questioned, could not remember the names or ages of his own children!

With yet another win under my belt, I have built a solid niche practice area in Massachusetts adverse possession law and boundary line disputes. I really enjoy working on these types of cases as they are factually intensive and usually have a fair share of nasty neighbor drama!

Listen to my recent radio appearance on boundary line disputes and adverse possession! Click play.

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Richard D. Vetstein, Esq. is an experienced Massachusetts adverse possession and boundary line dispute attorney who has tried numerous adverse possession cases in Land Court and Superior Court. Please contact me if you are dealing with a Massachusetts adverse possession dispute.

Samuel Winiker v. Kimberly BellJudgment, Findings of Fact and Rulings of Law

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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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