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Massachusetts Appeals Court Holds Operators of Commercial Campground Established Right to Un-Enclosed Land Through Adverse Possession

Under the doctrine of adverse possession, an individual, business, or group of individuals who have continuously used land owned by someone else for twenty years can make a claim that such use entitles the claimant to ownership of the property. To prevail on a claim of adverse possession, a claimant must prove (1) he or she used the disputed property or portion of a property without permission, (2) that the use was actual, (3) open, (4) notorious, (5) exclusive, and (6) adverse for a period of at least twenty years. Lawrence v. Concord, 439 Mass. 416, 421 (2003). 

On September 23, 2015, the Appeals Court held that an adverse claimant's longstanding operation of a commercial campground on un-enclosed wooded land was sufficient to put the record owners of the land on notice that the adverse claimants occupied the property under a claim of right.  In Paine v. Sexton, the Appeals Court affirmed a Land Court ruling that plaintiffs who had long operated a campground on approximately thirty-six acres of predominantly wooded land in Wellfleet could register the land based on their adverse possession of the property. No. 14-P-14, 2015 WL 5567171, at *1 (Mass. App. Ct. Sept. 23, 2015). 

The Defendants in Paine claimed that "the plaintiffs cannot establish their claim of adverse possession of any portion of the wooded parcels because they have not enclosed them or reduced them to cultivation . . . ." Id. at *2. The Court refused to impose a strict rule that land must be enclosed or otherwise improved in a particular way by an adverse claimant in order to establish adverse possession.  Rather, the Court explained that the "nature of the occupancy and use must be such as to place the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right; in the circumstances of wild and unimproved land, a more pronounced occupation is needed to achieve that purpose." Id. at *2, quoting Sea Pines Condominium II Assn. v. Steffens, 61 Mass. App. Ct. 838, 848 (2004). 

The Court found that the Plaintiffs' activities on the land were sufficient to satisfy the elements of adverse possession: "[i]n the circumstances of the present case, in which the plaintiffs operated the locus as a commercial campground advertised as such, improved the site by clearing campsites and constructing roadways, toilet buildings, and an office, and restricted access to paying customers, we are satisfied that the judge was correct in his assessment that the plaintiffs' use was sufficient to place the record owners on notice that the plaintiffs occupied the locus under a claim of right." Id. 

Under the color of title doctrine, "where a person enters upon a parcel of land under a color of title and actually occupies a part of the premises described in the deed, his possession is not considered as limited to that part so actually occupied but gives him constructive possession of the entire parcel. The entry is deemed to be coextensive with the grant upon the ground that it is the intention of the grantee to assert such possession." Dow v. Dow, 243 Mass. 587, 590 (1923). Plaintiffs in Paine submitted seven deeds that had been recorded with the Barnstable County registry of deeds in support of a claim of color of title to the entire area of land covered by those deeds. Id. at *3. Defendants asserted in response that the deeds submitted by Plaintiffs were too uncertain and included improper references to certain assessors' maps of the Town of Wellfleet. Id at *3. 

The Land Court found in favor of the Plaintiffs on their color of title argument and "entered a judgment declaring that the plaintiffs' claim of adverse possession extended to the boundaries of the parcels described in the deeds under which they held an apparent (though possibly flawed) record title. . . ." Id. at *3. The Appeals Court affirmed this portion of the Land Court ruling as well, holding that "the judge was entitled to reject, as matter of law, the defendants' expert's assertion that the deed descriptions cannot possibly be located on the ground in any circumstances."  Id. at *3. The Court remanded to the Land Court for further proceedings prior to the time at which a decree of registration of the land in favor of Plaintiffs could issue.  Id. at *3, n. 9.

Paine stands for the proposition that, in certain circumstances, title to wild or wooded land can be established by adverse possession even where the disputed area is not fully enclosed and has been at least partially maintained in its natural state. Fitch Law Partners LLP will continue to monitor developments in this area of the law. 

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