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Adverse Possession (Part I)

Articles from The Massachusetts Focus

Newsletter of Stewart Title Guaranty Company, Massachusetts Offices>
Summer 2004, Volume 3, Number 3

Adverse Possession (Part I)
by Gary F. Casaly, Special Counsel

Title to land can be acquired by adverse possession, and rights in easements and servitudes on the land of others can arise based on prescription. I will discuss these two concepts — adverse possession and prescription — in this multi-part article.

Though a good title can be acquired by adverse possession or prescription, a good record title will always depend upon some form of judicial recognition of the rights so acquired. This does not make adverse possession or prescription a subject for theoretical debate, but points out that title based on one or both of these theories must first be proven before a conveyancer can be expected to pass upon the title.

Adverse possession and prescription need to be discussed in the context in which each arises, with particular attention paid to the relationship of the parties that are in the ongoing dispute. As we will see, co-owners under the same deed are treated differently than are strangers, and they have different elements to prove in their case; neighbors may find that their level of proof is different because of the proximity of their respective properties and their unique relationship as abutters; and persons with certain disabilities may in certain cases be exempt from the application of the doctrines altogether.

What are the elements of adverse possession[1] and what's necessary to prove them? In Cook v. Babcock, 11 Cush. 206, the court said:

Where a party claims by a disseisin, ripened into a good title by lapse of time as against the legal owner, he 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.

So, the basic elements that determine whether title is obtained by adverse possession are (i) actual possession, (ii) open possession, (iii) exclusive possession and (iv) adverse possession.[2] As we shall see, there are points where the four elements of adverse possession overlap, but I will endeavor to point out the fine distinctions between them so that you can see that they are in fact different. A fifth element, continuous possession (or, as the court states, "lapse of time"), is also required, but this goes not to the quality of the possession, but rather its duration. That is, the continuous possession element is the one that is plugged into the running and ultimate expiration of the statute of limitations for the recovery of land, which is the basis of adverse possession in the first place.

Actual Possession

Actual possession[3] means that the party claiming the right has to some degree actually occupied the property, or (in the case of constructive possession, to be discussed in the next installment of this article) at least some part of it. The possessor must have made some use of the property, and the activity or activities that the possessor engages in, and the area in which the activity takes place, may determine whether that possession is "actual" as to that area. Actual possession, therefore, is an exercise of dominion over the property. It is for this reason, for example, that the payment of taxes on the property, although admissible in evidence together with other facts, is not sufficient by itself to comply with the actual possession requirement, simply because it does not show such dominion.

Open Possession

Open possession is many times discussed in connection with notorious possession as well. The two terms are closely connected, but they are nonetheless different. Open possession means that the possessor's occupation of the property is in clear view and is not concealed. In other words, the possession must be conspicuous, and not hidden.

Notorious possession means that the possession has been communicated to the public and, presumably, the true owner. It would seem that "open" possession would itself fulfill this requirement, but that is not necessarily the case. Though the possession may be open, if the "message" that it is occurring is not "received" by the public, then the overall purpose of the possession is not realized. For, adverse possession requires that the true owner be given the opportunity to effectively deal with and terminate the same on the part of the claimant. If the possession, even though not concealed, is not known, either actually or constructively, by the true owner, that opportunity has been lost. It should be noted here that the requirement is that the true owner know (or should have known) of the possession, not that the true owner knew that he or she had an interest to protect.

In this regard, Lawrence v. Concord, 439 Mass. 416 (2003) is instructive. In Lawrence Mary Burke left a will that provided that title to her property on Main Street in Concord, Massachusetts, would under its terms pass to her daughter, Helen, for the duration of her life, and upon Helen's death the title would thereupon pass to Harriet. The will further provided that when Harriet died, if she then had no children, the title would go to the Town of Concord for the public purpose of educating deserving children. The town had no knowledge of this provision of the will because under the law then in effect there was no requirement to notify testamentary beneficiaries thereunder of the provisions of the instrument except beneficiaries who were heirs at law.

During her life, Helen conveyed her life estate to Harriet, who thereafter died childless. Therefore, under the terms of the will title would have then vested in the town.

Upon Harriet's death her husband Joseph continued to occupy the property and did so in an open and adverse way, claiming it as his own. He did this for over thirty years, until his death. In his will Joseph left the property to Albert Lawrence. When Joseph's will was probated it was then for the first time that the Town of Concord received information that, under the terms of Mary Burke's will, it was the true owner of the land. It took the property by eminent domain and paid Lawrence no damages, claiming that it was unnecessary because the municipality was the true owner.

In an action for damages by Lawrence against the town the issue was which party was the true owner: Lawrence, claiming title by adverse possession under Joseph, or the town, claiming title under Mary Burke's will. The trial court held in favor of the town, and the Appeals Court affirmed, citing the fact that the town was unaware of its interest in the property, and therefore was not in any position to protect its interests against Joseph during the period of his occupation while adverse possession was in progress. The Supreme Judicial Court reversed and held that the element that the Appeals Court had cited was not an element of adverse possession:

The Appeals Court reasoned that "[Harriet's husband's] use was not open because the true owner, the town, neither knew nor reasonably should have known of its ownership or that the nature of [Harriet's husband's] use changed when Harriet died, becoming adverse to the town's ownership," and that "[n]othing in [Harriet's husband's] conduct or use should have alerted the town, or anyone else, to the town's interest." [Lawrence v. Concord, 56 Mass. App. Ct. 70, 74 (2002)]

The Supreme Judicial Court held that the town's lack of knowledge that it had an interest to protect was irrelevant. 

Adverse Possession

As noted in footnote 2, to describe adverse possession as having the element of adverse possession is to "argue in a circle." That is why many authors ascribe the term "hostile possession" to this element. This element of adverse possession is one of the most interesting because it involves so many sub-elements.

Adverse or hostile possession requires that the possession be wrongful and that it therefore gives the true owner a cause of action against the possessor. But the point is that if the possession is not wrongful, thus raising no right of action in the true owner as against the possessor, adverse possession will not exist. Since adverse possession is anchored in the running of the statute of limitations for an action for the recovery of land, it follows that if the true owner has no cause action against the possessor no adverse possession could be found.

States of mind, both of the possessor and the true owner, or at least their states of mind (implied) as perceived by their actions, may be pivotal on whether the possession is hostile. If a neighbor encroaches upon the land of another neighbor, is this "hostile," or would it be implied that due to their relationship and proximity to each other the encroachment was by permission? If there's permission, of course, there's no adverse possession, because the true owner would have no cause of action against the encroaching neighbor. If the possessor believes that the land is his or hers and not that of another party, can the possession truly be called "hostile"? Hand/Smith, Neighboring Property Owners, McGraw-Hill Information Services Company (1988) says that there are two theories here, and characterizes them as the "Connecticut rule" and the "Maine rule":

The Connecticut rule evolved from the French v. Pearce decision in 1831 [8 Conn 439] and is clearly the majority position [and that of Massachusetts]. This view considers the subjective intent of the adverse possessor to be irrelevant, whether or not it stems from mistake, ignorance or inadvertence. * * * The strongest justification for the Connecticut rule is that if an adverse possessor's mistake destroys hostility, then bad faith [actual hostility] is rewarded while good faith is penalized.

The minority rule, or Maine rule, began in the 1893 case of Preble v. Maine Central Railroad [85 Me 260]. This position considers the subjective state of mind of the adverse possessor to be relevant, requiring an intent to possess the land of the true owner for such possession to be hostile and to ripen into title. 

Exclusive Possession

Another element necessary to prove adverse possession is the requirement of exclusive possession. Here, the exclusivity is as to the true owner. If the true owner is in possession, the adverse possessor cannot acquire rights in the property. But the fact that the adverse possessor shares possession with one other than the true owner does not defeat this requirement of exclusivity. As we will see in the next installment of this article, exclusivity may be as to a part, as opposed to the whole, of the property claimed by the possessor, and the rule of exclusive possession takes on a different meaning when it comes to adverse possession's cousin, prescription.

Continuous Possession

As noted above, since adverse possession is anchored to and inextricably coupled with statutes of limitations concerning the recovery of land, the duration of uninterrupted possession is important. In Massachusetts this period is twenty years. What will interrupt that possession, causing it to begin anew, and whose possession can be counted toward the statutory period will be examined in the next installment of this article.

I will explore other aspects of adverse possession and elaborate on some of the things I've already touched upon in the next edition of The Massachusetts Focus. 

I will continue with this subject in "Adverse Possession (Part II) " in the next edition of The Massachusetts Focus.

1 I'm going to use the general term "adverse possession" to describe that term as well as prescription, but I'll make a distinction when it is necessary to do so. [Back to Text]

2 In Partridge, Deeds, Mortgages ands Easements, Wright & Potter Printing Co., (Revised Edition, 1947), part 5, the author states: "It is submitted that the word 'adverse' is out of place in a statement of the elements essential to making a title by proof of adverse possession. To say that one has title by adverse possession because he holds adversely is to argue in a circle. 'Hostile' or 'under claim of right' would be understood more readily. See Ashley v. Ashley, 4 Gray, 197 at 200." [Back to Text]

3 As we'll see, there must be some actual possession, but constructive possession can be applied to determine to what extent the actual possession extends beyond the area actually possessed. [Back to Text]