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Massachusetts Agencies

Adverse Possession (Part II)

Articles from The Massachusetts Focus

Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Fall 2004, Volume 3, Number 4

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

This article is a continuation of Adverse Possession (Part I) in Volume 3, Number 3 of The Massachusetts Focus.

Some of the elements of and defenses to adverse possession are rooted in legal fictions. Some of these fictions govern the basis of adverse possession itself and its elements of proof, while others determine what land is the subject of the adverse claim.

The very concept of adverse possession and its enforcement by the courts is based upon the legal fiction of a "lost grant." The theory is that a long period of possession by a party plus a failure of the true (or record) owner to take action to oust the possessor is evidence that the possessor must be claiming under a grant from the present or a prior record owner - for else how would the uninterrupted possession of the intruder be explained? Eno and Hovey, Massachusetts Practice - Real Estate Law with Forms, West Publishing Co., (Third Edition, 1995), ?§27.1 (footnote 3), explains it this way:

The theory of a lost grant is a legal fiction. Bucella v. Agrippino, 257 Mass. 483, 154 N.E. 79 (1926); it rests upon the common law rule that something that has existed from time immemorial must be so. Since the statute of limitations for the recovery of land now is twenty years, this period now is the period of time "beyond which the memory of man runneth not to the contrary." At English common law, that period ran back to the first year of the reign of King Richard I. Coolidge v. Learned, 25 Mass. (8 Pick.) 504 (1829).

The "memory of man" concept and the presumption of a "lost grant" are fully discussed in the old case of Edson v. Munsell, 10 Allen 557 (1865), where the court traces their origins to arcane and ancient doctrines developed in England long before America was settled. But in Edson the twist was that the defendant against whom the adverse possession (or actually prescription) case had been brought was insane. In determining whether such an action could be maintained, the court said:

The ground upon which prescription has generally been put in this commonwealth has been the presumption of a previous grant or agreement, which has been lost by lapse of time. (Citations omitted.) But a grant cannot be presumed against a person legally incapable of making it. (Citations omitted.) An insane person cannot make a binding grant of his real estate. A sale of the whole or part thereof might indeed have been made [when the possession began] by license of the court of common pleas or this court for payment of his debts or for his support. (Citations omitted.) But the absence of evidence of any defect in the records of either of these courts, it is difficult to see how such a license can be presumed. (Citations omitted.)

The court concluded that the "lost grant" concept could not apply where the respondent was insane, and commented on the result that would be obtained if the "lost grant" theory were to be presumed based upon a "lost license" as well:

And conclusively to presume a lost license to sell such an interest would be to carry the doctrine of presuming whatever is necessary to give validity to an imaginary grant farther than it has ever yet been carried.

The "memory of man" concept also seems to find its way into the notion of adverse possession from another angle too. As stated, one basic fact that is woven through the concept of adverse possession is that the possessor's occupation of the property cannot be resolved except by applying fictions that suggest a logical reason for the unexplained possession. But in the case of cotenants, for example, the possession of one to the exclusion of the other does not permit the application of the fiction because such possession is consistent with the co-extensive rights of either tenant to possess the entire property. In the case of cotenants, one of the cotenants must show that he has ousted the other in order to prevail in an adverse possession claim - an additional element to adverse possession that "strangers" do not have demonstrate. But in Allen v. Batchelder, 17 Mass. App. Ct. 453 (1984) the court pulled another fiction out of the adverse possession bag and used the "memory of man" concept to explain lack of evidence of such an ouster.

In Allen it appeared that in 1864 the otherwise good title held by one Tristam Allen shattered when he left an undivided portion of it to his widow. Neither the widow nor anyone claiming under her ever took possession of the property. The land became the subject of a registration proceeding based on adverse possession brought by Clarissa Allen, another party claiming directly under Tristam Allen, in which Ross Batchelder, claiming under the chain from Tristam Allen's widow, was named as a respondent. Batchelder insisted that Allen could not succeed in her case because he and Allen were cotenants, and that no evidence had been introduced showing that he had been ousted - turned away - by her in any effort on his behalf to enter into possession. The court cited and acknowledged the rule that Batchelder pressed:

Batchelder supports his claim with the argument that the interest of a cotenant cannot be wiped out by prescription without an ouster and, more to the point, communication of that ouster to the absent cotenant. It is correct that sole possession by one tenant in common is not in itself adverse to the interest of a nonpossessory cotenant; it could be consistent with the right of the cotenant. Richard v. Richard, 13 Pick. 251, 253 254 (1832).

However, the court also said:

It was regarded by Chief Justice Shaw as equally well settled, that a long exclusive and uninterrupted possession by one, without any possession, or claim for profits by the other, is evidence from which a jury may and ought to infer an actual ouster. * * *. There need be no "turning out by the shoulders" to manifest a decisive intent to occupy to the exclusion of the absent cotenant.

* * * * *

Precisely how long a possession should be to raise a presumption of ouster depends on many circumstances . . . but it is apparent from the cases that ninety years is far more than enough.

So, ouster, the additional element to be proved in adverse possession cases between cotenants, was established not by evidence but rather upon the fiction that "a strong presumption arises that actual proof of the original ouster has become lost by lapse of time." A similar "lost" concept that had been applied to a grant (thus explaining the possession of the errant disseisor) was also applied to an ouster. The interesting point here is that with respect to the fiction concerning a lost grant, it is presumed that the possessor must have had and is claiming peaceably under an instrument from the respondent that cannot be found, while in the case of an ouster the fiction is turned on its head and the presumption is that the respondent must have been turned away even though there is no proof of it.

I've discussed one of the elements of adverse possession as actual possession. Actual possession is indeed an element of adverse possession, but actual possession of what? Although actual possession must exist, there is a body of law that states that the possession, though it must be actual, need only be of a portion of the property claimed, at least where the claimant makes entry upon the land under a deed or other written instrument. That is, if the possessor simply enters upon the land, his possession, and therefore the area that he might claim under adverse possession, is limited to that portion of the land with respect to which the actual possession exists. On the other hand, if he enters claiming under a deed, his possession, though actually limited to a portion of the property, will be deemed to be as to the whole property described in the deed. This is the concept of "color of title," and it essentially, through the use of a fiction, artificially expands the area of actual possession beyond the portion of the land actually possessed. In Norton v. West, 8 Mass. App. Ct. 348 (1979) the concept was described as follows:

Color of title, in the context of an adverse possession claim, is an assertion of a claim of ownership based on an instrument of title, such as a deed or lease, even though that instrument does not pass a valid title. See Attorney Gen. v. Ellis, 198 Mass. 91, 97-98 (1908). The advantage which a person may gain from that doctrine is that the activities relied upon to establish adverse possession reach not only the part of the premises actually occupied, but the entire premises described in a deed to the claimant. Dow v. Dow, 243 Mass. 587, 590 (1923). For example, if the act of adverse possession were cultivating a half acre parcel of land, but the claimant held an invalid deed describing three acres, the claimant would have constructive possession of the three acres for the reason that it is the presumed intention of the grantee of the deed to assert such possession.

Although the doctrine of color of title was discussed in Norton it was found to be inapplicable in the case because the party claiming under it, even though taking up possession of a portion of the property, "did not record [the] deed affecting the locus" until after the true owner had re-entered the premises.

Color of title is sometime equated with constructive possession, another fiction of sorts, but the concepts do not always mean the same thing. Color of title expands the area that is the subject of the possessor's claim not based on any act taken by the possessor, but merely on account of the description in an instrument describing property, a portion of which he possesses. That may, in some instances, be accurately described as "constructive possession," but the latter term can also be descriptive of an expansion of the possessor's occupation without the aid of any instrument to areas enclosed but never occupied for the statutory period by the possessor. In Hand/Smith, Neighboring Property Owners, McGraw-Hill Information Services Company (1988) the authors say:

Constructive adverse possession exists where the claimant is in actual possession of part of a parcel of land and is holding as grantee under a deed or other instrument that covers the entire parcel. Such an adverse claimant is said to have "color of title," signifying that the deed or instrument purporting to convey legal title to the entire parcel of land, for some reason which does not appear on the face of the document, does not provide such title. Under the idea of constructive adverse possession, the adverse claimant who is in actual possession of part of the parcel is deemed to be in possession of the entire parcel described in the color of title. [Footnotes excluded.]

One element that will stop an adverse claim in its tracks is consent. Consent will effectively neutralize nearly the "adverse" aspect of any possession. But the question is, consent to what? An interesting case in this regard is Kendall v. Selvaggio, 413 Mass. 619 (1992). In this case Selvaggio and Kendall were abutting owners. Prior to Kendall purchasing the property, Selvaggio approached his neighbor's predecessor in title (Rose Crane) and inquired whether she had any objection to his constructing a fence between the bushes that ran from the sidewalk area to the rear lot lines of their adjoining parcels. Rose had no objection and Selvaggio built the fence. In fact Selvaggio built the fence eight or nine feet within the limits of Rose's property. This fact was not discovered until twenty-three years later, when Kendall bought the property from Rose and had a survey prepared. When the discovery was made, Kendall approached Selvaggio and demanded that he remove the fence, but he insisted that he had acquired the invaded-upon land by adverse possession.

Kendall took the position that Selvaggio could not have acquired adverse possession because the fence was constructed with the consent given by Rose, his predecessor in title. The court acknowledged that consent was a valid defense, but pointed out that the proper inquiry was not as to the consent to erect the fence, but the consent to use the respondent's land.

[T]o the extent that the judgment was based on the mistaken belief that consent to build a fence, by itself, vitiates the adverse nature of the use of that land, it was in error. The central inquiry should be whether consent was given to use the plaintiffs' land. Ivons Nispel, Inc. v. Lowe, 347 Mass. 760, 763 (1964). The evidence thus far does not show that Rose Crane granted the defendants permission to build on her own property rather than on the boundary line or even on the defendants' property. Therefore, since Crane's consent did not expressly permit the defendants to use her land, it did not vitiate the defendants' adverse possession claim.

Another issue raised in the case was Selvaggio's intent. Since he sought Rose's consent to build the fence, the argument here was that he did not have the necessary intent to deprive her of her property. But the court said:

Furthermore, Selvaggio's intent in seeking Crane's consent is irrelevant to a claim of adverse possession. * * * In a number of earlier cases, this court has held that a possessor's intent not to deprive others of their property does not prevent the possessor from acquiring title to that property through adverse possession.

Adverse possession, as stated generally in the first installment of this article, technically relates to the acquisition of fee title due to the occupation of another person's property. Prescription, on the other hand, although many times used to describe adverse possession, really concerns the acquisition of an easement over the land of another. But the distinction does not only relate to the type of interest that is acquired by the possessor, but also the requirements that the possessor must satisfy in order to acquire the particular interest. In the case of prescription, the true owner may still be in possession of the land (a situation that will prevent adverse possession from occurring), and yet the possessor may nonetheless acquire an easement, a lesser interest in the property. There is, however, a method of preventing the acquisition of such an easement by prescription. It is found in G.L.c. 187 §3, which states:

If a person apprehends that a right of way or other easement in or over his land may be acquired by custom, use or otherwise by any person or class of persons, he may give public notice of his intention to prevent the acquisition of such easement, by causing a copy of such notice to be posted in a conspicuous place upon the premises for six successive days, and such posting shall prevent the acquiring of such easement by use for any length of time thereafter; or he may prevent a particular person or persons from acquiring such easement by causing a copy of such notice to be served upon him or them as provided by law for the service of an original summons in a civil action. Such notice from the agent, guardian or conservator of the owner of land shall have the same effect as a notice from the owner himself. A certificate, by an officer qualified to serve civil process, that such copy has been served or posted by him as above provided, if made upon the original notice and recorded with it, within three months after the service or posting, in the registry of deeds for the county or district in which the land lies, shall be conclusive evidence of such service or posting.

It should be noted, however, that posting such a notice will not prevent the acquisition of full fee title if the other requirements of adverse possession are met. See Rothery v. MacDonald, 329 Mass. 238, 107 N.E.2d 432.

The case of Sea Pines Condominium III Association v. Steffens, —Mass.App.Ct.—, —N.E.2d— (2004), which is a very recent action involving adverse possession, involved a situation where the association of a condominium had over a period of many years cleared brush and bushes from adjacent land owned by another party in an effort to keep the water view to Cape Cod Bay clear. The land that was cleared was "wild" land, and there was a discussion regarding adverse possession as to such land, but the court felt that the actions taken were sufficient to satisfy the requirements that must be met requiring possession of such land. But the interesting part of the case revolved around the procedural issue as to whether the condominium unit owners organization was a proper party to maintain an adverse possession action. In discussing the "proper plaintiff" the court noted:

As a general rule, unincorporated associations lack the capacity to sue and be sued, see Save the Bay, Inc. v. Department of Pub. Utils., 366 Mass. 667, 675 (1975), but G.L.c. 183A §10(b)(4), creates an exception for condominium associations. Belson v. Thayer & Assocs., 32 Mass. App. Ct. 256, 256 n.1 (1992). Section 10(b)(4), as inserted by St. 1963, c. 493, ? 1, specifically empowers the organization of unit owners (whether corporation, trust, or unincorporated association) "[t]o conduct litigation and to be subject to suit as to any course of action involving the common areas and facilities or arising out of the enforcement of the by laws, administrative rules or restrictions in the master deed." The authority to litigate matters concerning the condominium common areas in fact resides exclusively in the condominium unit owners organization. See Cigal v. Leader Dev. Corp., 408 Mass. 212, 217 218 (1990); Strauss v. Oyster River Condominium Trust, 417 Mass. 442, 445 (1994). (Footnotes omitted).

Although it is clear under the statute that the condominium unit owners organization has the exclusive authority to litigate matters concerning the condominium common areas, the court noted that there was some question as to whether the case concerned the condominium common areas at all because, as all parties agreed, the land claimed under the plaintiffs' complaint had not been submitted to the provisions of G.L.c. 183A by a master deed or any amendment thereto.

We are aware of no other appellate case in Massachusetts (or, for that matter, in any other State) involving a claim of adverse possession by a condominium association or trust to land beyond the boundaries of the land submitted to the condominium form of ownership under its master deed. [The defendant] presses two related arguments regarding the lack of statutory authority for the association to maintain this action. First, [the defendant] observes that the association's authority under G. L. c. 183A, §10(b)(4), to conduct litigation is limited to "any course of action involving the common areas" [and] since the claimed land is not now part of the common areas, [the defendant] reasons, the authority to conduct litigation claiming the land is beyond the power conferred by the statute. Second, [the defendant] points to the requirement, under G. L. c. 183A, ? 5(b)(2)(iii), as amended by St. 1998, c. 242, §5, for the consent of at least 75 per cent of condominium unit owners and 51 per cent of their first mortgagees to any addition of land to the condominium. (Footnote omitted).

But the court said neither statutory provision barred the action.

The landscaping activities on which the plaintiffs' claim of title rests all occurred incident to the association's discharge of its role in maintaining the common areas of the condominium. In that respect, we consider the claim to arise out of a "course of action involving the common areas," viz., the association's maintenance of the common areas. It would be anomalous indeed to recognize an unincorporated condominium association as a proper party with capacity to sue in the manner contemplated by the condominium statute in disputes arising from its activities on the common areas, but to ignore its status as a condominium association in a controversy arising from the impacts on adjacent land of its operation of the condominium. Such a view would frustrate the purpose of the provisions of c. 183A establishing and recognizing the organization of unit owners, in whatever form created, as the proper entity to administer matters of common concern to the condominium unit owners. (Footnotes omitted.)

We are likewise unpersuaded by [the defendant's] contention that the association was required by G.L.c. 183A §5(b)(2)(iii), to obtain the consent of unit owners and mortgagees before bringing suit on a claim of adverse possession. If the association has acquired the claimed portion of [the defendant's] land by adverse possession, it has done so by means of its long continued use of the land, rather than by the present litigation; the complaint for declaratory judgment seeks merely to confirm the effect of that historic use, by operation of law. In that respect, the situation is analogous to an action seeking determination of title to littoral land following accretion. See, e.g., Lorusso v. Acapesket Improvement Assn., Inc., 408 Mass. 772, 780 782 (1990). Though G.L.c. 183A does not specifically address the present circumstances, we see no reason to construe it in the narrow manner [the defendant] urges, particularly where the unit owners have acquiesced in the association's maintenance activities on the disputed land, have paid their proportionate shares of the cost of such maintenance as incurred, and confirmation of the title thus acquired (if the claim is successful) would inure to the benefit of the association as a whole. Moreover, [the defendant's] argument, pressed to its limits, would preclude a condominium association from raising a valid statute of limitations defense in an action naming it as defendant in an action for recovery of land, unless it first obtained the consent of its unit owners and their mortgagees. [Footnotes and references to footnotes omitted.]

Adverse possession can apply as against a mortgagee. But how can this be, since possession by the owner of the property is not inconsistent with the relationship between mortgagor and mortgagee? The answer is found in G.L.c. 240 §15. That statute provides:

If the record title of land or of easements or rights in land held and possessed in fee simple is encumbered by an undischarged mortgage or a mortgage not properly or legally discharged of record, and the mortgagor and those having his estate therein have been in uninterrupted possession of the land or exercising the rights in easements or other rights in land, either for any period of twenty years after the expiration of the time limited in the mortgage for the full performance of the condition thereof, or for any period of twenty years after the date of a mortgage not given to secure the payment of money or a debt but to secure the mortgagee against a contingent liability which has so ceased to exist that no person will be prejudiced by the discharge thereof, the mortgagor, or those having his estate in the land, or exercising the rights in easements, or any person named in section eleven, may file a petition in the land court; and if, after such notice by publication or otherwise as the court orders, no evidence is offered of a payment on account of the debt secured by said mortgage within such period of twenty years after the expiration of the time limited for the performance of the condition thereof, or of any other act within said time in recognition of its existence as a valid mortgage, or if the court finds that such contingent liability has ceased to exist and that the mortgage ought to be discharged, it may enter a decree, reciting the facts and findings, which shall, within thirty days after its entry, be recorded in the registry of deeds for the county or district where the land lies, and no action to enforce a title under said mortgage shall thereafter be maintained. Two or more persons owning in severalty different portions or different interests, such as are described in section eleven, in the land subject to the mortgage may join in one petition, and two or more defects arising under different mortgages affecting one parcel of land may be set forth in the same petition. If the petition is contested, the court shall make an appropriate order for separate issues.

Note that the statute speaks in terms of twenty years, the period of adverse possession, and requires the expiration of that period since the stated maturity date in the mortgage (in the case of a mortgage securing the payment of money) with no payment during that time being made on the mortgage, or (in the case of a mortgage securing a non-money obligation) since the recording of the mortgage.