Adverse possession is a legal proceeding that often arises among property and boundary disputes. What is adverse possession? Adverse possession is a legal claim where a party can assume ownership of someone else’s property, after using it for a continuous period of time. There are many explanations on the rationale behind adverse possession, but my favorite is that adverse possession is intended to preserve the status quo. In other words, if a person uses a parcel of land for a long period of time, without objection from the owner of the property, they should be entitled to keep doing so.
To understand what is adverse possession, it is necessary to know the requirements for bringing such a claim.
To acquire property by adverse possession, a party must show that they made actual use of the property. In other words, a party needs to show they used the property similar to other property of its kind. For example, an adverse possession claim over a backyard would likely require a showing of activities common to this type of property, such as gardening, lawn care and maintenance.
Massachusetts, importantly, requires a party bringing an adverse possession claim to show actual use for twenty years. If a party has not personally used the land for this period of time, they are permitted to “tack on” a prior persons use of the land, to make up this twenty year period. For example, if you have only used the property for ten years, and a prior person used the land in the same way ten years before that, you would be within the twenty year time period by “taking” on this prior usage.
Actual use doesn’t necessarily need to be full time use. For example, for a seasonal property, a party only needs to show that it was in use for the relevant season of the year. For an adverse possession claim for a beach property, a claimant would likely not need to show it was used in the winter.
Open and Notorious
Adverse possession also requires a party to show that this use was open and notorious. In short, this means the use is visible to others; namely the record owner of the property. This rationale makes sense: if the true owner can’t see how the land is being used, then it wouldn’t be fair to allow it to be acquired by someone else.
The use of the property must be exclusive. Only the claimant must have been using the property to meet this element; if the property, for example, is commonly used by others, an adverse possession claim may not be viable. However, in some cases, a claimant may have a claim for an easement by prescription, giving the claimant access to the property (but not ownership).
The last, and arguably most important, element of adverse possession is that the use must be adverse. The claimant must be using the property without permission of the record owner. In Massachusetts, there is an important presumption of law: unexplained use of property is adverse. In other words, use of property that does not recognize the record owner as the rightful owner of the property is adverse.
Understanding what is adverse possession is important in knowing how to deal with such a potential claim. If you are a landowner and suspect that someone else might have an adverse possession claim against your property, it is important to act promptly. Likewise, if you suspect that you may acquired property through adverse possession, you also need to act quickly to protect your rights. If you find yourself in either scenario, contact me for a consultation.