Tacking On in Massachusetts

My next-door neighbor has filed a lawsuit against me claiming adverse possession of a narrow strip of property along our common boundary. This is in a subdivision with relatively small lots. I have an attorney who assures me that their case is bogus for several reasons, but I'm trying to understand as much of the law as I can. (This is Massachusetts.)

The neighbor's house was built in 1952, and my house (which I bought in 1986) was built in 1962. My property is at a somewhat higher grade than the property next door, so at the time that my house was built, a stone retaining wall was built near the surveyed property line, but about a foot on my side. In 1972, the former owners of the house next door built a swimming pool between their house and the property line. Of course, they needed a fence to enclose the pool. By mutual agreement with the former owners of my house, they installed part of the fence a few feet on what is now my side of the property line, at the higher grade. So the pool enclosure actually includes a section of my retaining wall.

In 1977, the first owners of my house sold it, and the property changed hands a few times before I bought it in 1986. The people who built the pool stayed until 1992, and then sold to the current neighbors. During the 1986-1992 period, I remember having a conversation with the former neighbors where they asked if it was OK if they continued to use the property on their side of the fence and I agreed. I didn't realize at the time that I should have put the agreement in writing.

Fast forward to 2006, when the current owners of the property next door started doing things that I didn't like. I spoke with them, claimed ownership, showed them an old survey, had a new survey done, and so forth [the "so forth" could be the topic of another whole message].
Anyway, one thing led to another and the current neighbors filed a lawsuit claiming adverse posession of all of the property on their side of the fence that was installed in 1972.

The suit is still pending, but the former owners of the property with the pool have come in for depositions. They confirmed that the fence was
installed with the permission of the former owners of my property. They also said that they always knew that the actual property line was on their
side of the retaining wall (since they had watched the wall being built). And they said that they never considered themselves to be the owners of
the property between the fence and the property line and they never made any claims of ownership. They did, of course, make use of that property, planting flowers and so on. However, they did not recall the conversation where they asked for my permission to use the property. In fact, they said that they never spoke about the property line question with any of the previous buyers of my property, nor did they discuss that topic when they sold their property to the current neighbors.


So now it comes to my question.

The current neighbors' adverse possession claim depends on tacking-on to use of the property in question by the former owners for the period 1986-1992. But the initial entry into what is now my property was clearly permissive. My understanding is that the use by the former owners of the
property now in dispute should be considered permissive even after my property was sold in 1977, as long as that use did not change. Is that how it works?

Danny

Isn't your lawyer capable of advising you on these issues?

In general, A claimant must prove nonpermissive use that is actual, continuous, open, notorious, exclusive, and adverse for twenty years. Ryan v. Stavros, 348 Mass. 251, 262, 203 N.E.2d 85 (1964).

If possession is permissive, it is not adverse possession. Absent a "special relationship" between the parties, such as landlord and tenant, Massachusetts apparently does not require the party claiming adverse possession to give actual notice to the true owner of the change in status from permissive to adverse. Lawrence v Town of Concord, 439 Mass. 416, 788 N.E.2d 546 (2003). So it would be conceivable that the new owner's use would be regarded as nonpermissive even though all prior owners regarded themselves as being permissive users of the land.

If a possession is not adverse to the owner's claim, it is not adverse possession. You state that the 1986-1992 neighbors testified that they had no adverse intention, and regarded the land as yours. Doesn't your lawyer view that as potentially dispositive?

Thanks for the reply, Mr. K.

Yes, I think my lawyer is capable of advising me on the specifics (but it's always comforting to hear the same opinion from someone else who "knows it all"). And yes, she does view the 1986-1992 neighbors' statements a dispositive. (I had to look up that term.) But my lawyer has other clients and other cases to worry about, while I have only this one to bother me. And the legal process is so slow. So I'm trying to educate myself on this topic.

I guess I'm really trying to ask a more general question. I've read various layperson's descriptions of adverse possession and there is always advice that the owner should put agreements concerning permissive use into writing in order to create a paper trail. But what happens if there is nothing in writing? How does the court determine if possession is adverse or permissive? Under what kinds of circumstances can one person's use change from permissive to adverse?

Danny

In most states the law is that a permissive use cannot become adverse, so having a writing which proves that the initial use was permissive will prevent a later claim of adverse possession. From what has been stated above, Massachusetts departs from that general rule and, in the absence of a special relationship, the person possessing the property can transform their use from permissive to adverse without informing the title owner. Given that, in the absence of a special relationship I am not sure how much a writing will help in Massachusetts unless it is periodically reaffirmed (that is, every few years, or at least at periods of time less than the statute of limitations for adverse possession or a prescriptive easement, the neighbors again sign and date the contract or a subsequent agreement confirming that the use is permissive).

Don't you have to distinguish between the property being used and the nature of that use. Suppose I give you permission to plant tomatoes in part of my yard. And suppose you do that for five years and then go and build a garage in the tomato patch. If I don't say anything about the garage for 20 years, you might have a legitimate adverse possession claim. But if all you do is plant tomatoes for 25 years, wouldn't that be different?

Danny

Usually the question asked is whether the use is in the manner of an owner. If a typical owner would do nothing more than plant tomatoes on the area at issue, and the use meets all the other requirements (recall the requirement that the adverse use be exclusive), planting tomatoes may be sufficient.