ADVERSE POSSESSION

Statutory Basis. The statutory basis for adverse possession is Mass. Gen. L. c. 260, §21, which provides for a twenty (20) year statute of limitations to recover possession of land.

Basic Requirements. In order to acquire title through adverse possession, the claimant's use of the real estate must be actual, open, notorious, exclusive, adverse to the owner, and continuous for twenty (20) years. The burden is on the individual asserting adverse possession to prove all elements of the claim.

Types of Estates over which there is no Adverse Possession. There are certain types of estates that are not subject to adverse possession claims. Some examples include (i) registered land (Mass. Gen. L. c. 185, §51), (ii) state highways (Mass. Gen. L. c. 81, §22), (iii) conservation land owned by non-profit corporations (Mass. Gen. L. c. 260, §21), (iv) land owned by the Commonwealth of Massachusetts and used for conservation or other public purposes (Mass. Gen. L. c. 260, §31), (v) land owned by the United States (United States v. Hato Rey Bldg. Co., 886 F.2d 448 (1st Cir. 1989)), (vi) land owned by railroads (Mass. Gen. L. c. 160, §88), and (vii) public burial grounds (Commonwealth v. Viall, 84 Mass. (2 Allen) 512 (1861)).

Preventing Adverse Possession. A petition to register land interrupts or terminates adverse possession. Snow v. E. L. Dauphinais, Inc., 13 Mass. App. Ct. 330 (1982). Note that the posting of a notice under Mass. Gen. L. c. 187, §3 which is effective in preventing the acquisition of easements by adverse possession, has been held not to necessarily interrupt the period of adverse possession where the intent is to acquire a fee interest. Rothery v. MacDonald, 329 Mass. 238 (1952)("the acquisition of an easement by prescription and the acquisition of title to the fee by adverse possession are two very different conceptions and the end results are vastly different”).

Insurability of Land Acquired Through Adverse Possession. Title which is dependent on adverse possession is not insurable unless and until there is decree or judgment of a court of competent jurisdiction adjudging that the title is vested in the plaintiff. While a proposed insured may make a valid argument that his or her family has been in possession of the locus for the last fifty (50) years, nevertheless, adverse possession does not establish a marketable title.

A title dependent on adverse possession should be distinguished from a title in which a percentage interest is missing. A classic example of this is when an individual dies leaving eight (8) heirs or devisees. We can adequately account for the interests of seven (7) out of the eight (8) parties. Unfortunately, the eighth party is nowhere to be found and the chain of title is lost. Under these circumstances, and only with approval of the local office, we may be able to insure the title even though a percentage of the ownership interest is based on a claim of adverse possession. In this case, the following exception must be added to Schedule B of the policy:

Unmarketability of title by reason of the missing interest of __________________

We are often able to provide affirmative insurance to a lender with respect to this type of exception. The affirmative insurance should be added as a note after the exception and reads as follows:

NOTE: This policy, however, affirmatively insures against any loss or damage occasioned by anyone successfully claiming by, through, or under the said ______________________.

I would emphasize that this affirmative insurance is only provided to the lender and must be approved by the local office. Factors which will be weighed in determining whether this coverage can be granted will be: (i) the size (percentage) of the missing interest, (ii) the number of years which have passed since the death of the decedent, and, (iii) the past use and history of the premises (e.g., it has been used as a residential structure for the last forty (40) years).

Cart Paths and other Signs of Adverse Possession Claims. It is not uncommon to see adverse possession or prescriptive easements arise as encumbrances to the title to be insured. An example of this is the old cart path that cuts across the back of the lot and is being used by parties to go to and from another parcel. While there is no express grant of easement, prescriptive rights may have been obtained over this cart path. Under these circumstances, an exception must be added to Schedule B of the policy which reads as follows:

Rights of others in and to a cart path running along or across the _____________ portion of the property.

If a plan is recorded that denotes the adverse use or evidence thereof (i.e. an unrecorded easement or right of way), the exception should also reference the recording information of the plan. Other examples of possible adverse possession interests are when a neighbor's building encroaches onto the premises, an abutter's driveway encroaches onto the premises, or similar adverse uses are discerned.