Adverse Possession

The Recent Appeals Court Decision in Paine v. Sexton: An Introduction to Adverse Possession

The right of an owner to eject others from her land is fundamental to our legal system. But an owner who neglects her property rights may find that she has wholly lost her property to another.

The Law of Adverse Possession

How can it be that an owner may lose her property by mere neglect? Welcome to the law of “adverse possession,” a common law doctrine that frequently preoccupies first-year law students and neighbors alike. Under the law, and in Massachusetts specifically, one who possesses another’s land in a manner that is “actual, open, notorious, exclusive and adverse” for more than 20 years may acquire title to that land. So if you’re concerned that your neighbor’s new rock wall encroaches into your backyard, investigate and protect your rights sooner rather than later.

Adverse possession settles the competing interests of owners and unauthorized possessors of land. Specifically, a possessor may be ejected only by the owner or someone claiming a right to the land under that owner. A third party, such as another would-be possessor, has no right to eject the possessor. To the contrary, the possessor may eject anyone but the owner (as the saying goes, “possession is nine tenths of the law”). But when the owner is prohibited from ejecting the possessor by the passage of the 20 year statute of limitations period, there is no one left with standing (i.e. the right) to eject the possessor. His rights to the land are now supreme and the law vests title in him. 

At first glance, adverse possession typically strikes many as highly unfair to an owner, as it appears to give a windfall to an unlawful possessor (whom some may label a “squatter”). Therefore, to balance a possessor’s ability to acquire title, the law requires that his possession have specific characteristics intended to give notice to the owner that her property is being claimed by someone else. In other words, the possession, by its nature, should provide the owner a reasonable opportunity to learn of the claim and protect her rights. This prevents a possessor from acquiring title secretly or by deception. Hence, the “actual, open, notorious, exclusive and adverse” requirements.

The Example of Paine v. Sexton

Case law on each of these factors is extensive, and whether a possessor’s particular use meets these requirements is always a factual question. However, a recent Appeals Court decision in the case of Paine v. Sexton provides a clear example of successful adverse use. In Paine, the record owners of a large tract of woodland in Wellfleet challenged the claim of a possessor. The possessor had operated a commercial campground on the land for roughly 50 years at the time of the challenge. As to the quality of possession, the Appeals Court described:

[The possessors] created roadways and cleared campsites…They have placed picnic tables, fire rings, and campsite numbers on the campsites seasonally and have built a house, erected two toilet facilities and an office building, enlarged parking areas, and created a volleyball pit, a paddock, and play areas. They constructed a wall of railroad ties along the road frontage, and fencing comprised of iron pipes and wires, from which they hung “no trespassing” signs, around much of the campground… The [possessors] controlled entry to the locus — charging an amount per person — and ousted those who did not pay. The [possessors] also advertised the campground with signage along the highway, and in newspaper advertisements and brochures distributed in local stores.

In holding that the possessors had obtained title by adverse possession, the Appeals Court found that the nature of the possessor’s occupancy and use “was sufficient to place the record owners on notice that” the possessors claimed the land.

Protecting and Defending Against Adverse Possession Claims

Paine is an unusual case to the extent that it dealt with such a large tract of land. In its typical manifestation, adverse possession operates to quite title to slight encroachments between neighbors or to settle boundary discrepancies created by ambiguities in deeds to adjacent properties. Owners concerned with claims of adverse possession can take certain steps to protect their rights, from putting up fences and entering agreements with neighbors, to initiating actions for ejectment in the appropriate court (actions dealing with claims of adverse possession are frequently filed in the Land Court, which has particular expertise in the field).

A frequent defense to adverse possession involves a claim by the owner that the possessor’s use was permissive, i.e. expressly acknowledged and allowed by the owner. This defeats the necessary “adversity” element. Thus, if an owner is concerned with a claim of adverse possession by a neighbor, the owner should seek to obtain an acknowledgement in writing from the neighbor regarding the permissive nature of the neighbor’s use. 

Our office handles real estate disputes, including claims of adverse possession and easements by prescription. We also advise on how to avoid these disputes from the outset. Give us a call or send us an email today.