Adverse Possession Law in MA

on-ramp · 03-06-2005, 09:02 AM

Anyone familiar with the intricacies of this land law in MA? the surveyor came and posted sticks about 3 feet away from the fence towards the neighbors house...since then the fence came down and we've been in dispute over this sliver of land. the neighbor filed a claim and we're going to land court.

any help/information would be greatly appreciated. thanks very much.

350HP930 · 03-06-2005, 09:24 AM

Whose fence was it, and who took it down? This post is worthless without details.

on-ramp · 03-06-2005, 10:26 AM

it was our fence, the town surveyor that we hired came and put down posts about 3 feet on the other side of our fence, running parallel down the fence. the total land in question is about 1,000 square feet.

The fence was built by the previous owner many years ago before we bought the house. Do we have the right to rebuild the fence where the posts are (property line)? the neighbor is suing, claiming adverse possession but we've been paying the taxes all these years on this property. neighbor has live there 37 years.
hope that's enough detail.

WOODPIE · 03-06-2005, 11:36 AM

on-ramp,

Sounds to me that you need to check for local building codes regarding "set-back" from property lines. If nothing exists in that regard, I'd say you have every right to rebuild your fence right to the edge of your newly aquired property. Put it right on the mark, you know, really stick your neighbor's nose in it, so to speak, and then luxuriate in your 3 X 333 foot strip of land.

Sorry, I'm no doubt jumping to conclusions. What brought about this survey work in the first place?

A few months after moving into my present home, my neighbor mentioned that the actual property line of our houses was six or more feet in his favor, from the side of his front yard fence. My closing required no plat, and after doing a little investigation, found that one had never been done, or at least filed, in the county. Rather than put more money in other peoples' pocket, I decided to let things stand as they are. If my neighbor is indeed correct, I cut some of his grass once a week or so, every summer, for free. In return, my yard looks bigger than maybe it really is. I mean, for me, what's the big deal?

The neighbor at the backside of my property also has a fence built well within his recognized property line. I cut that grass too; it is just simpler that way. Maybe if mineral or drilling rights were involved, I'd feel differently, but since that's not the case, I'd just as soon have amiable neighbors as nitpicking over strips of Georgia dirt.

As I said at the start of this reply, this could be a set-back issue, and you could possibly be on the wrong side of the fence, so to speak.

Ed

competentone · 03-06-2005, 12:50 PM

Have you run this by a real estate attorney yet? Has your neighbor gotten advice from an attorney yet?

Generally, it is my understanding that a fence line not on a property line will not result in an adverse possession for the person who had the extra property on "his" side, but laws vary by state and are not "simple" law.

An attorney in your state sounds like it could help you; even if he doesn't have a certain answer, he will know what to argue in court.

Bailey · Bailey's Garage

In MA, you can take another's property by adverse possesion if for 20 consecutive yrs or more (need not be same owner) a property has utilized part of another property as there own without protest. Adverse possesion is when a court would officially give the land to the property that has used it for so long. This is somewhat simplified, and the law is rather strange. I have been involved in an adverse possesion suit now for 4 years.

Tishabet · 03-07-2005, 06:00 AM

I think Bailey has it.....where in MA is the property?

Overpaid Slacker · 03-07-2005, 06:21 AM

The bar-exam standard is that in order to take property by adverse possession, such possession must for 20 years have been open, continuous, exclusive, adverse and notorious.

Naturally, each jurisdiction is going to have built its own jurisprudence about what actions actually constitute each of the foregoing prerequisites, but my non-MA admitted $.02 is that your simply having the land on the other side of your fence does not mean that your neighbor actually "occupied" the property. Check w/ your local counsel, but any AP claim may be susceptible to undoing by your claim that you allowed the neighbor to use the property; ie, his use (if any) was with your knowledge and permission ... therefore his use/occupation was not actually "adverse."

Secure competent legal advice from someone who knows your jurisdiction, I don't, so the foregoing should not be relied upon.

JP

thastings · 03-08-2005, 04:15 AM

Common law requires the person claiming adv. poss. to have known that the land was NOT his and to openly USE IT as if it was his. There is no requirement that a fence must be on the property line.
The paying of taxes on the land normally does not stop an adv. poss. claim. It is based on possession and use.
A surveyor's duty is to mark on the ground the location of the deed lines and to document any problems that he finds (lines of possession, errors indeeds of the property and adjacent properties, etc.), not to solve property line disputes.
Only a court can award title to the claiming party after 20 yrs (in Maryland, MA may differ) of un-interupted use. Not the City, the City Surveyor, private surveyor or the words of the claimer. The burden of proof is solely on the claimer that the owner knew the land was his, that that the claimer was using it in a "hostile" (with intent to steal it) manner and that there was never any permission (this is why tenants can not file these claims against landlords) by the owner to the claimer to use the land.
How is the claimer using the land?
What did you "think" you were buying? What did the p.o. tell you? There are lots of questions?
As far as the existing fence goes, it belongs to the property that built it, even if it is on the wrong property. If someone other than the owner removed it then they committed a crime. The owner of the property it is on must sue the owner of the fence for trespass and win BEFORE he can touch the fence.
This is a simpified comment on a very complicated subject, with regional regs affecting it. I recommend that you contact a MA licensed surveyor before calling a lawyer about this problem. They normally understand boundary law better then the lawyer.

Terry Hastings
MD lic. Land Surveyor