Many title disputes in Massachusetts arise through the assertion of an adverse possession claim. In Massachusetts, "[t]itle may be acquired by adverse possession only upon 'proof of non-permissive use which is actual, open, notorious, exclusive and adverse for twenty years.'" Ryan v. Stavros, 348 Mass. 251, 262 (1964).
A. Actual Possession
The nature and extent of occupancy required to establish a right by adverse possession varies with the character of the land, the purposes for which the land is adapted, and the uses to which the land has been put.
B. Open and Notorious Possession
Because the trespass on the land of another does not amount to an ouster without the express or implied knowledge of the owner, it is an essential element of the claimant's case and he must prove that the acts done on the land were sufficiently notorious to warrant the jury or fact-finding judge in presuming that the owner had notice of them. Ordinarily, the use of property is open if made without attempted concealment, and it is notorious if it is known to persons who could reasonably be expected to notify the owner if he supervised the premises to a reasonable extent, but it is not necessary that the claimant show that the owner had actual knowledge of the use for it to be notorious.
C. Exclusive Possession
To acquire title by adverse possession, the claimant must prove that he had exclusive possession amounting to a wrongful dispossession of the property from the owner. Where the acts shown by the claimant are not such that they would amount to a wrongful dispossession of the property from the owner, proof that the acts were known by and were not objected to by the owner does not make the acts any more effectual and they are not sufficient to prove adverse possession. Hence, the claimant does not sustain his burden of proof where he shows a concurrent possession of land with the owner.
D. Duration and Continuity of Possession
Land must be held adversely for twenty years in order to acquire title to it. The problem, however, is more often the proof required to establish the beginning of the adverse possession, the tacking of successive possessions, and whether the possession is continuous and uninterrupted. The person proving title by adverse possession may include the possession of his predecessor in title which has been transferred to him, but the previous possession cannot be tacked if there is not privity of title between the successive occupiers of the property.
E. Non-permissive Possession
To acquire title by adverse possession, the claimant must prove that his possession was under a claim of right or title, or with an intention to take appropriate and hold the same as owner and to the exclusion, rightfully or wrongfully, of everyone else. It follows that where the entry or use is permissive or under a license, the possession is not hostile or adverse to the true owner. Permissive use, however, that is based upon the mistaken belief as to the location of a boundary line, does not defeat a claim of adverse possession.
Cases in this area can become complex and often implicate title insurance policies as the underlying problem giving rise to the adverse possession claim is frequently due to a defective deed.
Goldman & Pease, Massachusetts Real Estate Attorneys
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The Greater Boston real estate lawyers at Goldman & Pease, located in Needham, specialize in business law, real estate law, condo law, civil litigation, and estate planning and serve the greater Boston metro region including Alston, Arlington, Belmont, Brighton, Brookline, Cambridge, Canton, Dedham, Dover, Milton, Natick, Needham, Newton, Norwood, Waltham, Watertown, Wayland, Wellesley, Weston, West Roxbury, Westwood, and all of Massachusetts. www.GoldmanPease.com
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