Adverse Possession

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.

Adverse possessor must identify and provide evidence of the boundaries of the land that is being adversely possessed

/ Adverse Possession, Title Issues

An owner cannot claim part of the neighbor’s land by adverse possession without clear evidence of where the border is. In Coscina v. DiPetrillo, 186 A.3d 590 (R.I. 2018), the adverse possessor claimed occupation of parts of her neighbor’s land but court documents repeatedly changed the location of the claimed line between the properties. Not only must the adverse possessor establish where the line is that encompasses the property acquired by adverse possession but must show sufficient evidence to establish the requisite acts of possession up to that line. 

Town acquires prescriptive easement allowing public to use a road and abutting parcel

/ Adverse Possession, Easements, Takings

When a road and abutting triangle of land was used the public and maintained by the town, the town acquired a prescriptive easement for continued use of the road by the public. Athanasiou v. Board of Selectmen of Westhampton,82 N.E. 3d 436 (Mass. App. Ct. 2017). The town’s highway superintendent maintained the area, plowed, sanded, oiled, and graveled the roadway, patched potholes, removed trees and fallen limbs from the area and cleared sediments from the triangle parcel.

Nonuse insufficient to show an easement was abandoned and it is not extinguished by prescription when a locked gate did not make it impossible for the easement owner to use the right of way

/ Adverse Possession, Easements, Servitudes

A locked gate did not extinguish the right to use an express easement when the fence was intended to keep out the public and did not prevent the easement owner from accessing the right of way. Twenty Bartlett, LLC v. Sgarano, 2018 Mass. Super. LEXIS 104 (Mass. Super. Ct. 2018). Only if an action renders use of an easement “practically impossible” can it start the statute of limitations running for a prescriptive easement that will extinguish the easements after the statutory period. The court required greater evidence that the easement owner was actually excluded and that the land owner was actually exercising exclusive control over the path.

Tree may be removed by owner of property where it first grew even if it grew to encroach on neighboring land and the neighboring owner does not want it removed

/ Adverse Possession, Concurrent or Common Ownership, Easements, Trespass

The Colorado Supreme Court has held that an owner may remove a tree on her own land even if it has grown over the borderline onto neighboring land even if the neighboring owner objects to removal of the tree. Love v. Klosky,2018 CO 20, 413 P.3d 1267 (Colo. 2018). In contrast, a border tree that was planted on the border itself becomes the joint property of both neighbors and cannot be removed with the consent of both of them.

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