Definition
What is adverse possession? Adverse possession is a legal doctrine that allows a person to claim a property right in land owned by another. Common examples of adverse possession include continuous use of a private road or driveway or agricultural development of an unused parcel of land. By favoring the adverse possessor over the true landowner, the doctrine of adverse possession rewards the productive use of land and punishes landowners who "sleep on their rights."
Massachusetts laws
MGL c. 7C, § 32 No right by adverse possession to land held by commonwealth
MGL c. 160, § 88 Railroad property is not subject to adverse possession
MGL c. 185, § 53 No title to registered land through adverse possession
MGL c. 260, § 21 Recovery of land claimed by adverse possession after 20 years
MGL c. 260, § 22 Time spent by a predecessor counts
MGL c. 260, § 28 Open possession to retain possession
MGL c. 260, § 29 Barring remainders and reversions
MGL c. 260, § 30 Effect of death of tenant
MGL c. 260, § 31 Actions by commonwealth
Selected cases
1148 Davol Street LLC v. Mechanic's Mill One LLC, 86 Mass. App. Ct. 748 (2014)
A cause of action for adverse possession against a private party can begin to accrue during prior public ownership of the land. "Nothing in the statutory language [of MGL c.260, s.31] immunizes such lands [privately owned lands that had previously been publicly owned] from having an adverse possession claim begin to accrue during the period of public ownership."
Cook v. Babcock, 65 Mass. 206 (1853)
"A party…must show an actual, open, exclusive, and adverse possession of the land. All these elements are essential to be proved, and the failure to establish any one of them is fatal to the validity of the claim."
Holmes v. Johnson, 324 Mass. 450 (1949)
"Acquisition of title through adverse possession is a fact . . . to be proved by the one asserting the title. The burden of proof extends to all of the necessary elements of such possession . . . ."
Miller v. Abramson, 95 Mass. App. Ct. 828 (2019)
In a case about a sliver of land in a suburban neighborhood, the plaintiff's use of the land "precisely as the average owner of similar property would use it in a suburban neighborhood populated with single-family homes," by mowing and maintaining it, was enough to allow a finding of adverse possession.
Nannucci v. Hynds, 99 Mass. App. Ct. 901 (2020)
The defendants appeal a Land Court judgment that concluded that the plaintiffs had established title by adverse possession to a narrow strip of property under the defendants' record ownership. The Appeals Court concludes that the Land Court judge's findings were not clearly erroneous and that G.L. c. 260 § 28 did not time bar the plaintiffs' claim for adverse possession, even though it was filed more than a year after they were "ousted" by the defendants.
Ryan v. Stavros, 348 Mass. 251 (1964)
Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive, and adverse for twenty years.
Web sources
Adverse possession, by Gary F. Casaly.
Discussion of elements of and defenses to adverse possession.
Adverse possession basics, by Konstantine Kyros (2000).
Basics and theories behind this doctrine.
"Your possession must be adverse to the owner’s claim, in other words without the owner’s consent. If the owner has given permission for you to be on the property you can't claim the property adversely."
“Property registered through the land court cannot be adversely possessed.”
Lawrence v. Concord: the doctrine of adverse possession restored and acquisition of title to government property, by Erin R. Boisvert, MBA Section Review, Vol. 6, No. 2 (2004).
Analysis of Lawrence v. Town of Concord, 439 Mass. 416 (2003), involving municipal property.
The Massachusetts quiet title action: A remedy of last resort to resolve complex title defects, by Richard D. Vetstein, Massachusetts Real Estate Law Blog (2017).
Discusses the costs of filing a “quiet title” lawsuit in the Land Court, as a way to defend against adverse possession.
Superior Court model jury instruction: Adverse possession
When comprehensive prescriptive easements overlap adverse possession by Will Saxe, 33 B.C. Envtl. Aff. L. Rev. 175 (2006).
Part I of the article provides an analysis of the required elements of adverse possession and a review of its origins in English law.
When good fences make upset neighbors: Adverse possession law in Massachusetts, Richard D. Vetstein, Massachusetts Real Estate Law Blog (2010).
Includes tips to prevent adverse possession, including filing a “quiet title” lawsuit in the Land Court, and submitting one’s land to the Land Court registration system. “A landowner can obtain adverse possession only by filing a lawsuit…The Massachusetts Land Court hears adverse possession cases along with the Superior Court.”
Print sources
American jurisprudence 2d, Thomson Reuters, Volume 3, "Adverse Possession", pages 79 - 359.
Clark on surveying and boundaries, 8th ed., LexisNexis, (2014). Chapter 22 Adverse Possession and Prescription.
Crocker's notes on common forms, MCLE 2022, Chapter 26, Adverse Possession.
Evidence and procedures for boundary location, 6th ed., Wiley (2011). Sections 13-30 through 13-45 deal with possession, including adverse possession.
Land surveys: A guide for lawyers and other professionals, 3rd ed., American Bar Association, (2012).
Massachusetts Superior Court civil practice jury instructions, 3rd ed., MCLE, loose-leaf. Chapter 17, Real Estate.
A practical guide to disputes between adjoining landowners-easements, v. 1, Matthew Bender, 1989 with supplement, Chapter 7 Adverse Possession.
Real estate law with forms, 5th ed., (Mass. practice v.28-28B), Thomson West, 2016 with supplements, Chapter 27 Adverse Possession.
Contact for Massachusetts law about adverse possession
Online
| Last updated: | April 4, 2024 |
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