Adverse Possession Defense

Earlier this month, I was successful in pursuing an adverse possession defense for one of my clients in Land Court. My client, who owned a commercial business with a parking lot, was sued by a nearby occupant, who claimed they had a permanent right to use my client’s parking area.

The Court agreed that the opposing party could not show the requirements for such a claim, and denied their request for a preliminary injunction. Had the other side won, my client would have had to open his parking lot for vehicular access, which would have put his business in jeopardy.

As I will discuss below, the claim in this case was actually for an easement by prescription, rather than adverse possession. However, because these causes of action are similar, and are both colloquially known as adverse possession, I’ll refer to the latter throughout this blog post.

Adverse Possession/Easement by Prescription

Adverse possession is a legal claim by which a trespasser can obtain full ownership of real property if they use it continuously for a period of twenty years or more. As I’ve discussed before, there are also several more requirements for such a claim, and a party pursuing such a matter is required to prove each of them.

Adverse possession claims often arise in boundary disputes, when a landowner discovers that the property they have been using is not part of their official boundary lines. If successful in such a case, the trespasser will obtain full ownership of the disputed property.

A claim for an easement by prescription is similar to adverse possession, but a claimant is not required to show exclusive use of the disputed property. Such claims are common for matters concerning access to property, such as a right to cross through another’s property to get to a waterfront or, as in this case, vehicular access.

Adverse Possession Defense

In an adverse possession claim, if any of the requirements “remain unproven or left in doubt”, the claim must fail. For this reason, a successful adverse possession defense attacks the viability of each element of the claim.

In this case, I focused heavily on the required twenty years of continuous, uninterrupted use that the opposing party needed to prove. The Court agreed that the opposing party failed to prove this element of their case because my client erected a barrier on his property, stopping the other party’s use of the property. Such an interruption was fatal to the other side’s claim.

Such a defense often requires some “detective work.” In this case, I needed to track down the prior contractor who erected this barrier and get him to sign an affidavit, as well as collect supporting photos and documents from others involved in this matter. The old saying, the “devil is in the details”, is spot on for these claims!

Final Thoughts

If you are involved in an adverse possession or easement by prescription, a proper defense is critical for protecting your property. Contact me for a consultation to learn what must be done in one of these matters.

Settling a Partition Case in Massachusetts

I was recently successful in settling a partition case for several of my clients, who co-owned a vacation property with several other family members. My clients wanted the home sold and the other family members did not. I was retained to file a partition case and have the court order a property sale. I negotiated a settlement that saved my clients significant time and money.

What is Partition?

Real estate can (and often is) owned by multiple owners. If one owner wants to sell the property, and the other owners are not agreeable to a sale, any owner may file for partition. Such cases are commonly brought in Land Court.

An important part of the partition process is the rule that any property owner has an absolute right to seek partition. This means that, if one owner wants out, the property will eventually need to be sold.

Settling a Partition Case: What to Know

For this reason, the best way to succeed in a partition case is to avoid one in the first place. Such a case, inevitably, will result in court costs and attorney fees which can be avoided if the parties work the matter out on their own.

To do this, it is critical to know the numbers:

  • How much is owed on the mortgage loan?
  • How much is the property worth?
  • How much did each party contribute towards the property?

Knowing these numbers will go a long way towards negotiating a favorable resolution for such a case.

Settling a Partition Case: How It is Done

Resolving a partition case is typically done in one of two ways. First, the parties can simply agree to sell the property and split the proceeds, based on what each party is entitled to. It is often a good idea to hire an experienced, credible real estate broker for such a sale, who will help get the best price possible for the property.

The other option is for one party to buy out the other owner’s share of the property. This option requires the parties to agree on the appropriate property valuation timeframe for this to be done.

In the case that I settled, my clients and the opposing party chose the second option and worked out a sale of the home on their own terms. This saved everyone significant money and brought the matter to an amicable resolution.

Final Thoughts

Resolving a partition case is almost always better than litigating one of these matters in court. If you need assistance with such a case, contact me for a consultation.