Recently, many of our clients have had questions on adverse possession, most often in the context of boundary disputes. In most of the cases that we have handled, there has been a change in circumstance (usually, new ownership of either one or both of the properties involved). One of the owners generally tries to put up a fence, or partakes in some other construction project, which brings up questions of boundaries. While some people know the requisite duration to establish adverse possession – 20 years – several of the other requirements to obtain title may not come to mind quite as readily. The common law doctrine of adverse possession, and the related doctrine of prescriptive easements, remain powerful mechanisms by which property interests may be altered.
To establish title to land by adverse possession, a party must demonstrate that each of the following is satisfied:
It may seem self-evident that in order to claim title by adverse possession, one must actually be in possession of the land to which he claims title. But what constitutes “actual” possession varies under the circumstances. “The nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put. Evidence insufficient to establish exclusive possession of a tract of vacant land in the country might be adequate proof of such possession of a lot in the center of a large city.”1 The marker is thus whether the individual in possession is controlling the property in a manner similar to that usually associated with ownership.
Visible and Notorious Possession
The possessor’s occupation of the land must be open and notorious, so as to put the titled owner on notice of the hostile activity. Notably, there is no requirement that the true owner have actual notice of the use in order for the use to be deemed notorious. What is necessary, though, is that the use be out in the open.
The adverse possessor must hold the subject property to the exclusion of all others, including the true owner. The “gold standard” for establishing exclusivity is the erection and maintenance of a fence in a location such that it excludes the record owner from accessing the subject property.
Continuity of Possession
Possession of the subject property must be continuous for 20 years, with no significant interruption of possession. Continuity of possession must be viewed in light of the use to which the land would be normally used. For example, if an adverse possessor uses a seasonal cottage without heat for a period of 20 years, but is not present during the winter, such use may still be deemed continuous for purposes of satisfying this element. Similarly, the property need not be possessed by one individual for the entire period. Rather, where there is privity of estate between those in possession, the possessors may “tack” the time of occupation to each other to satisfy the 20-year requirement.
Hostile Character of Possession
The use of the subject property must be without permission from the titled owner. The inquiry into whether use is permissible or non-permissive is largely fact-based, and different circumstances may produce unique results. However, there are a few additional things to keep in mind:
▪ Title to registered land (as compared to recorded land) cannot be acquired by adverse possession. Thus, even if each of the elements for establishing title by adverse possession are otherwise satisfied, the claim will fail.
▪ The intent of the adverse possessor is irrelevant. The Court must look at the facts of the possession as evidence of an intent to occupy and hold the property.
▪ Just like any other individual and/or entity, a condominium association has standing to bring a claim of title by adverse possession.
When one using certain land is unable to establish title due to a lack of exclusive use, he may still be able to establish an easement by prescription over the subject property, which enables him to continue to use the land consistent with his historic use. “It is not necessary … for one claiming an easement by prescription to show that his use has been ‘exclusive’ … .” In seeking to establish an easement by prescription, though, the location of the easement must be fixed. For example, if a party is seeking to establish use of a swath of land as a passageway, he must establish that the easement is confined to a regular and specific route. Aside from this, the requirements for establishing a prescriptive easement largely mirror those required to establish title by adverse possession. Thus, a claim to a right to use by prescriptive easement may be advanced in the alternative to a principal claim for adverse possession.
As said in the beginning, many of our cases arise due to a change in circumstances or neighbors. As many owners desire to maintain friendly relationships with their neighbors, it is often a good first step to try to discuss each party’s expectations and understandings relative to the disputed property. A lack of understanding can result in a breakdown in communication. When that happens, it likely makes sense to consult counsel. Cases involving claims to title and use run the gamut in terms of how they are resolved. While a letter or filing of a Complaint may be in and of itself sufficient to bring a neighbor to the table to reach reasonable resolution, other matters may lead to full litigation of the dispute.
The information herein is just a brief overview of adverse possession and prescriptive easements. If you think that you may have a matter implicating adverse possession or other claims concerning interests in real property, the attorneys of Casey and Lundregan have substantial experience in these areas.
- La Chance v. Rubashe, 301 Mass. 488, 490 (1938).