Adverse Possession

Prescriptive easements do not actually require “exclusive” use no matter what courts say

/ Adverse Possession, Easements, Servitudes

Many courts say that prescriptive easements can only be acquired if the use is “exclusive” among other elements. This is a mechanical holdover from the requirements for adverse possession where courts simply keep the same requirements and substitute “use” for “possession.” But it make no sense for an easement to be “exclusive” since the dominant estate owner retains whatever rights of use are not inconsistent with the easement. It is simply not how easements work for them to be exclusive of the land owner. If the landowner cannot use the easement in any way then the owner has lost title to the property. Of course, one can write an express easement to limit the freedoms of the land owner, but in general, the way easements work is to grant a limited use to another while the land owner retains all rights not inconsistent with that use. In effect, an easement …

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Ouster of tenant in common shown from very long exclusive possession

/ Adverse Possession

The Massachusetts Land Court has ruled that a married couple that owned a 1/3 interest as tenants in common with other owners lost their interest by adverse possession to their cotenants because their predecessors in interest had failed to use the area after they were “ousted” by their cotenants. Kane v. Harrington, 30 LCR 579, 2022 Mass. LCR LEXIS 90, 2022 WL 4533930 (Mass. Land Ct. 2022). In general, co-owners do not lose a commonly-held property interest merely because they do not use it. All co-owners have the right to possess the entire property so doing so does not constitute a trespass against other co-owners. Only when a tenant in common actually excludes another cotenant from the property (or tells them they are not welcome to use the property and does not allow them access) does the statute of limitations for adverse possession begin. That moment of “ouster” does start the …

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Massachusetts law denies adverse possession of property owned by the Commonwealth or its municipalities

/ Adverse Possession

When a dispute arose between the Cambridge Housing Authority and its neighbors over the location of a fence, the Massachusetts Land Court applied a statute that denies adverse possession of government-owned property, Mass. Gen. Laws ch. 260, §31, when that property is held for public purposes. Some other states have done away with sovereign immunity from adverse possession claims but this case reminds us that some states have the older immunity rule. Vasquez v. Cambridge Hous. Auth., 2022 WL 3331567 (Mass. Land Ct. 2022). In this case, the trespassory invasion was a fence rather than a building and the court ordered the fence removed or moved to the proper boundary so it no longer encroached on government land.

Not a regulatory taking and no compensation due when a town acquires an easement by prescription

/ Adverse Possession, Easements

The Supreme Judicial Court of the Commonwealth of Massachusetts held that a town can acquire an easement by prescription and that, if it does, no just compensation is due because no regulatory taking has occurred. Rather, the landower failed to object by suing for trespass or to give permission so the statute of limitations for ejecting the intrusion passed and the owner’s right to exclude was limited by statute and the doctrine of easement by prescription. The town did not “take” the property; the owner lost property rights by failing to take steps required by law to preserve those rights. Gentili v. Town of Sturbridge, 140 N.E.3d 391 (Mass. 2020).

Adverse possession available against city when land was not being used for a public purpose

/ Adverse Possession

The Pennsylvania Supreme Court has joined the modern movement to allow adverse possession claims against cities when the city’s land being occupied was not being devoted to a public purpose during the period was it was occupied by the adverse possessor. City of Philadephia v. Galdo, 217 A.3d 811 (Pa. 2019). The court noted that “it is well-established that a claim of title by adverse possession does not lie against Commonwealth property.” It explained: “The basis for this rule of immunity emanates from the doctrine nullum tempus occurrit regi, meaning “[t]ime does not run against the king,” which has its roots in the prerogative of the Crown.” But this doctrine does not extend to subdivisions of the Commonwealth like counties or municipal governments when land is not being used for a public purpose. Galdo holds that leaving land vacant for potential future use does not count as such a public purpose for adverse possession …

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Grant of permission to use driveway 31 years after initial use did not defeat prescriptive easement claim

/ Adverse Possession, Easements

Owners who traversed a road over neighboring land to get to a public way for more than 30 years established a right to a prescriptive easement despite a grant of permission by the owner of the servient estate that occurred long after the statute of limitations had run. Betts v. Smith, 27 LCR 473, 2019 Mass. LCR LEXIS 187, 2019 WL 4546578 (Mass. Land Ct. 2019) (citing Mass. Gen. Laws ch. 187, §2 which defines the rules for obtaining an easement by prescription). There was no express easement since the party who granted the easement was the son of the owner and “one cannot convey what one does not own,” (citing O’Donoghue v. Commonwealth, 99 N.E.3d 843 (2018)). Nor could an easement by necessity be established because the original conveyance granted an easement that was never constructed and there was no evidence that that road would not have been adequate.

Yardwork may be sufficient to establish adverse possession

/ Adverse Possession

A Massachusetts court has held that hiring a landscaper to regularly maintain a strip of land is sufficient to constitute “possession” and can ripen into adverse possession once the statute of limitations runs. Miller v. Abramson, 131 N.E.3 863 (Mass. App. Ct. 2019). This was the case when a line of vegetation formed a natural boundary line sufficient to signal that the adverse possessor claimed the property as their own. This was so even though the line of vegetable was penetrable.

Abandonment of an easement shown when fence closes access to it

/ Adverse Possession, Easements

Owners built a retaining wall and deck that completely excluded the neighbor from use of the strip of land, thereby extinguishing the easement by prescription since these acts “render[ed] use of [the] easement practically impossible” for the statutory period.  Giannelli Mgmt. & Dev. Corp. v. MPA Granada Highlands, LLC, 21 LCR 211, 216, 2019 Mass. LCR LEXIS 82, 2019 WL 1995535 (Mass. Land Ct. 2019). The court also found the easement was also extinguished by abandonment because the conduct of the easement owner showed an “intent to abandon the easement by acts inconsistent with the continued existence of the easement.” 21 LCR at 216. “Nonuse of the easement, standing alone, is not sufficient to constitute an abandonment by the owner of the dominant estate.” However, an “extended period of nonuse is a factor to consider in determining whether an easement has been abandoned,” especially when combined with “acquiescence to the use …

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Easement owner who exceeds the scope of the easement can obtain new use rights by prescription

/ Adverse Possession, Easements

Owner of an easement of passage that also uses the land without permission to park a car, use the area as a yard and maintain the lawn exceeds the scope of the easement and if done for the statutory period can obtain an easement by prescription for the longstanding uses. Savoie v. Zaniboni,  27 LCR 165, 2019 Mass. LCR LEXIS 58, 2019 WL 1511101 (Mass. Land Ct. 2019). The court applies the traditional presumption that uses of another’s land are nonpermissive unless evidence of permission is present.

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