Robert Nislick By Robert Nislick
You are a Massachusetts landowner. You may have recently purchased your property. Maybe you have owned the land for a long time. One day, you realize that your neighbors are doing something that irritates you. Perhaps they are parking cars on your property. Possibly they are crossing over your property. Maybe they have erected a shed on your property. They may even be mowing the grass or cutting down trees on your land to use for firewood.
Whatever the neighbors are doing, it is annoying and you want them to stop. After all, this is your land, not theirs. You have a survey done and it is clear that the neighbors are encroaching on your property. You discuss it with them. They tell you to pound sand. Even worse, they tell you they have a claim for adverse possession or a prescriptive easement against you.
You are not exactly sure what that means, but it sounds intimidating. The main difference between adverse possession and a prescriptive easement can be understood this way: Adverse possession gives them ownership of your land, whereas a prescriptive easement gives them the right to use your land.
Questions swirl around in your head. Can they really take my land? Are they blowing smoke? What can I do to stop them? How can I protect my property?
If you in the midst of a land dispute, contact Robert Nislick, a Massachusetts attorney and former Land Court law clerk, to discuss your rights and remedies.
In reality, it is difficult to establish a claim of adverse possession. “A party claiming title to land through adverse possession must establish actual, open, exclusive, and non-permissive use for a continuous period of twenty years.”[1] “If any of these elements is left in doubt, the claimant cannot prevail.”[2]
It is also difficult to establish a claim of prescriptive easement. “Acquisition by prescription of a right of way over land of another requires continued, uninterrupted use of that easement for twenty years.”[3] “As with adverse possession, the use must be open, notorious, continuous, and adverse.”[4] “No person shall acquire by adverse use or enjoyment a right or privilege of way or other easement from, in, upon or over the land of another, unless such use or enjoyment is continued uninterruptedly for twenty years.”[5]
In any event, the true owner of the property should not sit idly by. It is particularly urgent for the landowner to do something to cut off the accrual of the neighbor’s claim where close to twenty years have passed. “To stop the running of the statute, the owner’s entry, with few exceptions, must be done openly on the land, so as to give notice of the interruption.”[6]
Usually, this means filing a lawsuit against the adverse possessor. “In Massachusetts, the filing of a petition to register title to land or a complaint to establish title to land immediately interrupts adverse possession of that land.”[7] “The filing of a lawsuit stops the period of adversity since the court is charged with determining the state of the title at the time the action is filed.”[8]
The landowner may also seek an injunction to force the neighbor to remove encroachments from the property. “In Massachusetts a landowner is ordinarily entitled to mandatory equitable relief to compel removal of a structure significantly encroaching on his land . . . .”[9]
One thing a landowner may want to do to prevent someone from acquiring a right of way or other easement in or over his land, is to post, serve, and record a notice to prevent the acquisition of easement by custom, pursuant to G. L. c. 187, § 3. Under this statute, a person “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 . . . .”[10]
“While the posting of such a notice upon the land is an act of ownership and may constitute evidence bearing upon the continuity of an adverse possession . . . it does not necessarily, as matter of law, interrupt such possession.”[11] Very few cases have discussed whether the posting of a notice pursuant to G. L. c. 187, § 3, interrupts the accrual of an adverse possession claim, rather than simply the accrual of a prescriptive easement. The most prudent course of action for the landowner is to file suit against the adverse possessor before twenty years of actual, continuous, open, exclusive, and non-permissive use pass.
If you are embroiled in a land dispute with your neighbor, call Robert Nislick, a Massachusetts real estate attorney, today.
[1] Totman v. Malloy, 431 Mass. 143, 145 (2000).
[2] Mendonca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323, 326 (1968).
[3] Stone v. Perkins, 59 Mass. App. Ct. 265, 266 (2003).
[4] Id.
[6] Pugatch v. Stoloff, 41 Mass. App. Ct. 536, 541-542 (1996).
[7] Id. at 542 n.8.
[8] Galinat v. Charlton, Land Court Miscellaneous Case No. 399614 (KCL), slip op. at 4-5 (Long, J.) (Jun. 8, 2009).
[9] Xifaras v. Andrade, 59 Mass. App. Ct. 789, 794 (2003).
[10] G. L. c. 187, § 3.