Do good fences make good neighbors? In “Mending Wall,” by Robert Frost, the neighbor thinks so. Frost, though, was not so sure. He has the narrator say: “Before I built a wall I’d ask to know / What I was walling in or walling out, / And to whom I was like to give offense.” Frost was right.
Adverse possession is a doctrine that allows a person to acquire title to another’s land without the “true” owner’s agreement, and without paying for it. It almost always requires a lawsuit (the only exception being a situation where the person who holds record title concedes that he will lose the suit and deeds the land to the adverse possessor – a rare event).
The party seeking to acquire title by adverse possession must prove it. “The true owner is not to be barred of his right except upon clear proof.” In the recitation typically given by the Courts, the party seeking to acquire must prove “nonpermissive use which is actual, open, notorious, exclusive, continuous, and adverse for a period in excess of twenty years.” The occupancy must be “with an intention to appropriate and hold the same as owner, and to the exclusion, rightfully or wrongfully, of everyone else.” If any element is left in doubt, the adverse possession claim fails.
That said, the party claiming adverse possession can piggyback on its predecessor in title’s ownership (referred to as “tacking”) – so if Mr. Smith put up a fence that crossed over property held by his neighbor and then 19 years later sold his lot to Mr. Jones, Mr. Jones could bring a suit for adverse possession after one more year.
Adverse possession cases are inherently fact specific. A fence is pretty good proof of an intent to exclude all others but is not always necessary (and is not always sufficient). New questions constantly arise. Is lawn maintenance sufficient? Is planting bushes and trees? Is it adverse possession if neighbors agree (mistakenly) on where a boundary lies and one builds a fence, unknowingly taking the other’s land? What happens if you are negotiating the sale of property, and a neighbor states that he has an adverse possession claim? Does it matter if during the 20 years, the adverse possessor is acting with the hope and even the intent to conceal the fact that he has no valid interest in the property? (The answer to the last question is no).
One important caveat: Registered Land is land to which title has been certified by the Land Court (ownership of registered land is evidenced by a Certificate of Title). A party who owns Registered Land cannot lose it by adverse possession. To make this more complicated, ownership of property that is evidenced by a deed not Registered Land even though the deed recorded at the County’s Registry of Deeds is (it can be referred to as “recorded land”). Recorded land may be taken by adverse possession.
Robert Frost is probably rolling over in his grave.