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Adverse Possession And Color Of Title In Massachusetts

Property rights are generally transferred through conveyances of deeds, but there are times when a person can obtain rights to property through certain actions without the consent of the property owner. A person may gain an interest in property through adverse possession. To prove adverse possession, the person must show that he or she has openly used the property continuously for 20 years, without permission. The use must be adverse, notorious, and exclusive.

toasting-marshmallow.jpgThe Massachusetts Appeals Court recently considered the application of adverse possession when the claimant did not completely enclose the property in the case of Paine v. Sexton. The plaintiffs sought to register approximately 36 acres of property they had been using as a commercial campground. The Land Court found in favor of the plaintiffs in their adverse possession and color of title claims.

The plaintiffs claimed they had engaged in nonpermissive use of part of the property for more than 20 years. They claimed the use was actual, open, notorious, exclusive, and adverse. They also claimed adverse possession under color of title to the parts of the property where they could not prove actual use, based on deeds conveying title to them. The defendants argued that the plaintiffs could not prove adverse possession because they had not enclosed the wooded parcels or reduced them to cultivation.

One of the plaintiff's parents had begun operating a commercial campground on the property in approximately 1958, and it continued to be run by the parents, succeeded by the plaintiffs, since that time. They cleared campsites and made roadways. They also built a house, an office building, and toilet facilities. They built a railroad tie wall along the road and a fence around part of the campground. They hung no trespassing signs. The fence and walls did not completely enclose the property, however.

The plaintiffs charged a fee to people entering the property. They advertised the campground in a variety of ways. They also paid taxes on the property since the 1960s, but the bills did not specify which parcels the taxes covered. Nearly 500 people stay at the campground during weekends in the summer.

The appeals court noted that the plaintiffs had not completely enclosed the property or reduced it to cultivation. They had left the parts of the property between the campsites in a somewhat natural state. The defendants argued that the plaintiffs, therefore, had not met the requirements of adverse possession of wild or woodlands. The appeals court quoted previous cases that indicated that the purpose of the rule regarding woodlands was to require that the occupancy and use were sufficient to place the property owner on notice of the occupancy. Wild or woodlands require "a more pronounced occupation" to notify the owner. Adverse possession is determined by the specific facts of the case.

Here, the plaintiffs had advertised the campground, improved the property in a number of ways, including erecting buildings and constructing roads, and limited access to only those who would pay. The appeals court found these facts sufficient to support the Land Court's decision that the use was sufficient.

Under Massachusetts law, the activities relied on to establish adverse possession reach the entire property described in a deed to the claimant. The plaintiffs relied on seven deeds for their color of title claim. Those deeds each referenced 1964 assessors' maps. The defendants argued that this description was insufficient to support the color of title claim. The appeals court noted, however, that most of the deeds also contained metes and bounds descriptions. Furthermore, an assessor's plan provides a definite and accurate description of a particular lot.

The defendants argued that the Land Court judge had engaged in impermissible fact finding in rejecting their expert's position that the parcels could not be identified with any certainty based on the deed descriptions. The appeals court found, however, that the judge had reviewed the deed descriptions to determine which parcels they described, compared the use to the parcels described, and entered a judgment that the adverse possession claim extended to the boundaries of those parcels described in the deed. It was not improper for the judge to reject the expert opinion.

The appeals court affirmed the Land Court's rulings on both the adverse possession and the color of title claims.

Landowners should be diligent in keeping trespassers off their property. While adverse possession of such a large amount of property is relatively rare, this case shows that it can happen. If you have a legal issue involving adverse possession, the Law Offices of Richard Mucci can help you. Call (781) 729-3999 to schedule a meeting with a Massachusetts real estate attorney.

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