The Doctrine of Tacking in Massachusetts Adverse Possession Claims

By Robert Nislick

In order for one Massachusetts landowner to establish title by adverse possession to land owned of record by another, the claimant must prove “nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Lawrence v. Concord, 439 Mass. 416, 421 (2003).

Frequently, a person who is adversely possessing another’s land may not be able to establish that he personally has used his neighbor’s land for twenty years. This might be because the adverse possessor only recently purchased his property. Alternatively, it might be because he inherited the property he now owns.

The twenty-year requirement is strictly construed. For example, in one case, the court ruled that a claim of adverse possession that continued for “nineteen years, eleven months, and five days” was insufficient, and did not bar the record owner from retaking possession of a disputed strip of land. See Hewitt v. Peterson, 253 Mass. 92, 93-94 (1925).

“[A]lthough the time period is often described as the time necessary to achieve title by adverse possession, it actually is a limitations period, after which the true owner may not recover possession of the land from the adverse possessor.” In re Colarusso, 382 F.3d 51, 58 (1st Cir. 2004).

Even if the claimant has not personally used the land for twenty years, he may satisfy the requirement by tacking on “several periods of successive adverse use by different persons provided there is privity between the persons making the successive uses.” See Ryan v. Stavros, 348 Mass. 251, 264 (1964). Privity exists when there is “some relation between the successive users of such a nature that the use by the earlier user can fairly be said to be made for the later user, or there must be such a relation between them that the later user can be fairly regarded as the successor to the earlier one.” See id.

For example, the case of AM Properties, LLC v. J&W Summit Ave, LLC, Land Court Miscellaneous Case No. 13 MISC 479776 (AHS), (Sands, J.) (Jul. 2, 2015), involved a small strip of land located along a common boundary between the parties’ properties and two passageways to access the strip. The plaintiff purchased its property in 1999 from a trust, which had purchased the property in 1934. The trust had leased the property to a tenant in August 1993. The tenant soon began improving the strip on the defendant’s property.

The court noted that privity of estate exists between lessor and lessee. Additionally, the court noted that, “the adverse possession of the tenant maybe tacked to that of the landlord”. See Holmes v. Turner’s Falls Co., 150 Mass. 535, 547 (1890). Therefore, the court found that plaintiff could tack its use of the strip onto that of the trust for purposes of establishing adverse possession. Accordingly, even though plaintiff itself was adversely possessing defendant’s strip for less than twenty years, it was able to add on, or tack, its predecessor’s tenant’s use onto its claim.

In Perry v. Nemira, Land Court Miscellaneous Case No. 11 MISC 457157 (AHS), (Sands, J.) (Jan. 15, 2015), plaintiff acquired title to his property in early 1996. Plaintiff was required to demonstrate adverse use since 1991. Plaintiff proffered no evidence to suggest that his predecessors ever adversely possessed the disputed area. Moreover, plaintiff’s predecessor in title had essentially abandoned the property in late 1994 when she was incarcerated. Thus, the court found that even if the plaintiff’s predecessor intended to adversely possess the disputed area, there was a break in adverse use from late 1994 to early 1996. This prevented plaintiff from establishing continuous adverse use for the requisite twenty-year period.

In Giombetti Clue Props., LLC v. DiFronzo, Land Court Miscellaneous Case No. 10 MISC 443972 (HMG), (Grossman, J.) (Nov. 7, 2014), plaintiff sought a prescriptive easement over a portion of a paved driveway that encroached onto the neighboring property. The defendant argued that plaintiff’s claims failed because one of plaintiff’s predecessors sought permission to pave the driveway. The court noted that the plaintiff could not seek to tack its own adverse use onto a period of adverse use by an earlier predecessor, thereby “leap-frogging” over a period of permissive use.

If you have a claim or need to defend against a claim for adverse possession or prescriptive easement, contact Robert Nislick, a Massachusetts real estate lawyer.  He can be reached at (508) 405-1238, or by e-mail at rob@nislick.com.

Love Your Neighbor, Et Cetera – A Holiday Wish

By Robert Nislick

“You shall love your neighbor as yourself.” Leviticus 19:18.

In the world of real estate litigation, however, not everyone abides by this commandment.

During this holiday season, as we celebrate miracles and pray for peace, I offer the following wish:

Love your neighbor, landlord, tenant, easement holder, servient estate owner, licensee, trespasser, adverse possessor, condominium trustee, homeowner’s association, planning board, zoning enforcement officer, health inspector, building department, conservation commission, architectural commission, assessor, public works department, home improvement contractor, real estate developer, surveyor, harbormaster, state agency, title examiner, insurance company, tree warden, fence viewer, judge, clerk’s office, court officer, and all persons engaged in trade or commerce.

And if your heart will allow, then love your lawyer too!

About the author: Robert Nislick is a Massachusetts real estate lawyer.  He can be reached at (508) 405-1238, or by e-mail.

Getting and Removing a Lis Pendens in Massachusetts

 By Robert Nislick

When Massachusetts real estate owners are involved in land disputes, they frequently want to know how getting a lis pendens may help them. A plaintiff may seek to obtain and record a memorandum of lis pendens on a defendant’s property when instituting a proceeding that affects the title to real property or the use and occupation thereof or the buildings thereon. See G. L. c. 184, § 15 (a). A lis pendens often provides a party with leverage against his litigation opponent. Since a recorded memorandum of lis pendens essentially tells the world that a controversy exists concerning a piece of land, a plaintiff can usually place his rival at a practical disadvantage by recording such an instrument. Lenders and buyers will naturally have reservations about obtaining an interest in land, where they will be bound subsequently by the court’s judgment in the underlying controversy.

“A memorandum of lis pendens is a notice on the record title of real estate that reflects the pendency of any action that ‘affects the title to real property or the use and occupation thereof.’”[1] “[T]he fundamental remedial purpose of the statute [is] to ‘ensure that a prospective third-party transferee can, with the exercise of reasonable prudence, acquire information relevant to a decision whether to consummate the transaction.’”[2]

From the perspective of someone who may want to buy a piece of real estate that people are presently fighting about, a memorandum of lis pendens gives the innocent prospective buyer vital information that he might not otherwise have. Without a recorded memorandum of lis pendens, a buyer may unwittingly buy his way into a lawsuit. The memorandum of lis pendens protects the innocent buyer by informing him, ahead of time, that the seller may not be able to convey good and clear record and marketable title, or that someone is asserting a claim to that property.

Let’s say you are the plaintiff, the person who is asserting a claim to the other person’s property. Perhaps you are asserting a claim of title by adverse possession against your neighbor. Similarly, you may have acquired a prescriptive easement over your neighbor’s property. It might be that your neighbor is blocking your access to a right of way.

Alternatively, you may have a binding offer to purchase real estate or purchase and sale agreement. The seller is refusing to consummate the transaction and you want to sue him for specific performance. These are various situations in which a plaintiff may seek a lis pendens.

A party seeking a memorandum of lis pendens should reasonably determine that his claim “affects the title to real property or the use and occupation thereof or the buildings thereon”. See G. L. c. 184, § 15 (a).

If it does, then the plaintiff can file a motion for a finding and endorsement of a memorandum of lis pendens. A party seeking a memorandum of lis pendens should follow carefully the procedures for obtaining a lis pendens set forth in G. L. c. 184, § 15 (b), which include filing a verified complaint, including a certification that “the complainant has read the complaint, that the facts stated therein are true and that no material facts have been omitted therefrom”, and naming all owners of record as defendants.

“Upon motion of a party, if the subject matter of the action constitutes a claim of a right to title to real property or the use and occupation thereof or the buildings thereon, a justice of the court in which the action is pending shall make a finding to that effect and endorse the finding upon the memorandum.” G. L. c. 184, § 15 (b), third sentence (emphasis added).

Under certain circumstances, a plaintiff may move for an ex parte motion for memorandum of lis pendens. This means that the plaintiff is asking the court for relief without the other side having notice or being present. “If the memorandum is approved ex parte, it shall contain an additional finding that either (1) the defendant is not then subject to the jurisdiction of the court in that action, or (2) there is a clear danger that the defendant, if notified in advance of the endorsement of the memorandum, will convey, encumber, damage or destroy the property or the improvements thereon.” G. L. c. 184, § 15 (b), fifth sentence.

A defendant whose land has been encumbered by a memorandum of lis pendens can file a special motion to dismiss, a statutorily created remedy which is designed to expeditiously remove an unjustified lis pendens, and to dismiss frivolous claims brought in connection with the acquisition of such a lis pendens. See G. L. c. 184, § 15 (c). The General Laws also provides that the court award an aggrieved party costs and attorney’s fees in connection with the grant of a special motion to dismiss. The statutory mechanism for filing a special motion to dismiss a lis pendens, which was enacted by St. 2002, c. 496, and codified at G. L. c. 184, § 15.

“General Laws c. 184, § 15, provides ‘a mechanism for expedited removal of an unjustified lis pendens, including dismissal of frivolous claims supporting an approved lis pendens.’”[3] A party can “move for dissolution of the lis pendens and seek dismissal of the underlying claim if he or she believes that such claim is unjustified and frivolous, upon an expedited hearing and with entitlement to costs and reasonable attorney’s fees if successful. See G. L. c. 184, § 15(c), added by St. 2002, c. 496, effective January 31, 2003. . . . A litigant abused by bad faith claims and the use of lis pendens for their prosecution is far from remediless.”[4] “Under G. L. c. 184, § 15 (c), a party who believes that a claimant’s action or claim supporting a lis pendens is frivolous may file a special motion to dismiss.”[5]

“[T]he statute creates the special motion to dismiss as a way for the defendant to go beyond clearing the record title of the memorandum, and to gain dismissal of the entire claim. . . . [T]he special motion to dismiss deals with the sufficiency of the claim as a legal and factual matter, testing for frivolity by the distinct standards the statute sets out. The special motion to dismiss is considered by the court, if necessary, with the benefit of affidavits and other evidence. And in the case of allowance of a special motion to dismiss, the court is required by the statute to award ‘the moving party costs and reasonable attorneys fees, including those incurred for the special motion, any motion to dissolve the memorandum of lis pendens, and any related discovery.’”[6]

Attorney Robert Nislick is a Massachusetts real estate attorney who practices in Superior Court and Land Court. Contact him today for more information.

[1] McMann v. McGowan, 71 Mass. App. Ct. 513, 519 (2008), quoting Wolfe v. Gormally, 440 Mass. 699, 700 (2004).

[2] Wolfe v. Gormally, 440 Mass. 699, 706 (2004), quoting Debral Realty, Inc. v. DiChiara, 383 Mass. 559, 562 (1981).

[3] McMann, 71 Mass App. Ct. at 519, quoting Galipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct. 73, 81 (2005).

[4] Powell v. Stevens, 69 Mass. App. Ct. 87, 90 (2007).

[5] Faneuil Investors Group, LP, v. Board of Selectmen of Dennis, 458 Mass. 1, 2 n.2 (2008).

[6] Sapera v. VBDC, LLC, Land Court Miscellaneous Case No. 325720 (GHP) slip op. at 3 (Piper, J.) (Apr. 6, 2009).

How to Interrupt a Claim of Adverse Possession and Prevent the Acquisition of an Easement in Massachusetts

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.

[5] G. L. c. 187, § 2.

[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.

[11] Rothery v. MacDonald, 329 Mass. 238, 241 (1952).

Adverse Possession in Massachusetts

By Robert Nislick

Many of us wish to live in a world with friendly neighbors, and in a house with freshly painted white picket fences, and ample and accessible parking.  When you have bad neighbors, the dream can quickly turn into a nightmare.  One day you learn that your neighbors’ fence is over the property line.  Perhaps you have realized that they are parking on your land.  You try to mention it politely but it does not go well.

Gone is the welcome wagon that greeted you when you came to town.  Now you are going off the rails on a crazy train.  Your neighbors say that their fence has been there forever.  Although your survey shows the actual boundary, they don’t care.  They are not moving the fence.  Even worse, they tell you they now own your land.  How can that be possible?

Under the law of adverse possession, a person can actually cut off the ownership rights of the true owner of land.  Whereas someone might have been merely a trespasser, if he makes actual uses of the land of another, openly, notoriously, adversely, exclusively, nonpermissively, and continuously for a period of twenty years, the true owner may find himself out of luck.  A court could rule that the trespasser has now become the owner, and the person who was the owner has lost his ownership of the land.

If you find yourself in a dispute with your neighbor, you should contact Robert Nislick, a Massachusetts real estate lawyer, based in Framingham. I can help you analyze the situation and determine what claims you may have and whether they have any valid claims against you.  If someone is adversely possessing your land, there may be several things you can and should do to prevent the loss of your land and to keep your neighbor off your property.