Adverse Possession: Can My Neighbor Really Take My Land?

Good fences make good neighbors. Unless, of course, the fence sits beyond the recorded lot line and the landowner who is now enjoying a somewhat larger piece of property than is reflected on his or her deed claims title to the extra strip of land on his or her side of the fence under the doctrine of adverse possession. In that case, the neighbors (particularly in areas with high land values) often end up in litigation.

Claims of adverse possession arise not just where fences are involved. Any continuous use of somebody else’s land can result in a claim that, after twenty years, title to that land has shifted to the ‘adverse possessor.’ When a driveway, wall, hedge, garden or even a well-tended strip of lawn encroaches onto neighboring land, the piece of land in question can ultimately belong to the party who had been impermissibly trespassing on it for two decades or more.

To prevail on a claim of adverse possession a claimant must prove (1) he or she used the disputed portion of the 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, 788 N.E.2d 546 (2003). A claimant can “tack on” to earlier adverse use of the land by her predecessors in title to prove twenty continuous years of adverse use.

Proving “actual use” over a twenty-year period can be difficult. The witnesses, photographs and other evidence establishing the actual use may be hard to find more than twenty years later. And courts are strict about the “actual use” requirement. The Massachusetts Appeals Court has ruled, for example, that a claimant failed to acquire title by adverse possession to a large area consisting of overgrown, untended woodland, but did acquire title by adverse possession to a smaller area where the plaintiff proved he had maintained a lawn, a hedge, and a retaining wall. Pugatch v. Stoloff, 41 Mass.App.Ct. 536, 540-44, 671 N.E.2d 995 (1996). Sporadic use of property–acts of possession that are “few, intermittent and equivocal”–will not support a claim of adverse possession. Id.

Boundary disputes like these turn on a close analysis of the facts and current case law. No matter which side of the fence they are on, property owners embroiled in difficult boundary disputes should promptly seek the counsel of an experienced real estate litigation lawyer who can advise, litigate, or offer creative solutions to help resolve such conflicts.

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