When Good Fences Make Upset Neighbors: Adverse Possession Law In Massachusetts

Robert Frost once said “good fences make good neighbors.” When that fence encroaches over a neighbor’s property line, that neighbor can turn from good to upset 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 only obtain adverse possession by filing a lawsuit and establishing several elements of the claim.  (My Suffolk property law professor Bernie Keenan 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. 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.

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:

• Bring a lawsuit to “quiet title”
• 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
• Submit your land to the Land Court registration system
• Posting “No trespassing” signs (can be helpful, but is not fail-safe)

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 for more information about the Massachusetts real estate litigation process and going to court.

_______________________________________________________

Richard D. Vetstein, Esq. is an experienced real estate litigation attorney who’s handled numerous adverse possession cases in Land Court and Superior Court. Please contact me if you are dealing with a Massachusetts adverse possession dispute.

Related Posts:

• Massachusetts Real Estate Litigation: What You Can Expect Going To Trial, Part 2
• Move That Condo! Court Orders Removal Of Encroaching Building

Tagged as: Adverse Possession, MA adverse possession, MA adverse possession attorney, MA adverse possession law, Massachusetts adverse possession, Massachusetts adverse possession attorney lawyer, Massachusetts boundary dispute, Massachusetts property encroachments, Massachusetts property line dispute