Can the vacant land that abuts my lot be acquired through Adverse Possession?

Can the vacant land that abuts my lot be acquired through Adverse Possession?

June 9, 2014 Mike Sperling Leave a comment

Can the vacant land that abuts my lot be acquired through Adverse Possession?

Answer:  Most likely, but there are limited examples of real estate that are not subject to Adverse Possession claims.

Attorney Heney is an experienced Adverse Possession Attorney and has filed and defended several Adverse Possession Claims in the Massachusetts Land Court.  Recently, Attorney Heney was retained by a client with a unique title issue. The clients home was Recorded Land and the abutting property is Registered Land.  The home had clearly met all the requirements of an Adverse Possession, but was pre-empted from filing an Adverse Possession Claim because the subject property was Registered Land (Massachusetts Gen. L. c. 185, §51).  See below for a definition of Adverse Possession and other examples of types of Real Estate not subject to Adverse Possession claims.

Adverse Possession (Massachusetts):  Adverse Possession is “a method of acquiring complete title to land as against all others, including the record owner, through certain acts over an uninterrupted period of time, as prescribed by statute. It is usually prescribed that such possession must be actual, visible, open, notorious, hostile, under claim of right, definite, continuous [and] exclusive.”

Statutory Basis.
The statutory basis for adverse possession in Massachusetts is Mass. Gen. L. c. 260, §21, which provides for a twenty (20) year statute of limitations to recover possession of land.

Types of Real Estates over which there is no Adverse Possession.
There are certain types of real estates that are not subject to adverse possession claims. Some examples include (i) registered land (Massachusetts Gen. L. c. 185, §51), (ii) state highways (Mass. Gen. L. c. 81, §22), (iii) conservation land owned by non-profit corporations (Mass. Gen. L. c. 260, §21), (iv) land owned by the Commonwealth of Massachusetts and used for conservation or other public purposes (Mass. Gen. L. c. 260, §31), (v) land owned by the United States (United States v. Hato Rey Bldg. Co., 886 F.2d 448 (1st Cir. 1989)), (vi) land owned by railroads (Mass. Gen. L. c. 160, §88), and (vii) public burial grounds (Commonwealth v. Viall, 84 Massachusetts (2 Allen) 512 (1861)).

Preventing Adverse Possession.
A petition to register land interrupts or terminates adverse possession. Snow v. E. L. Dauphinais, Inc., 13 Massachusetts. App. Ct. 330 (1982). Note that the posting of a notice under Massachusetts. Gen. L. c. 187, §3 which is effective in preventing the acquisition of easements by adverse possession, has been held not to necessarily interrupt the period of adverse possession where the intent is to acquire complete ownership (fee simple) interest. Rothery v. MacDonald, 329 Mass. 238 (1952).

Insurability of Land Acquired Through Adverse Possession.
Title which is dependent on adverse possession is not insurable unless and until there is decree or judgment of a court of competent jurisdiction adjudging that the title is vested in the plaintiff. While a proposed insured may make a valid argument that his or her family has been in possession of the locus for the last fifty (50) years, nevertheless, adverse possession does not establish a marketable title.

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