Robert Frost once said “good fences make good neighbors.” When that fence encroaches over a neighbor’s property line, that neighbor can turn from good to upset very quickly.
When boundary or encroachments disputes arise, a little known legal doctrine often comes into play: adverse possession. Adverse possession is a legal doctrine in Massachusetts and most other states under which homeowners may lose title to their land by sleeping on their property rights for 20 consecutive years against a neighbor who has taken actions contrary to their property interests. Yes, a neighbor can effectively take over ownership of your land if you sleep on your rights. The doctrine of adverse possession reflects a public policy aimed at inducing landowners to actively protect their land. Realtors need to have a basic knowledge of adverse possession because it inevitably comes up when there are boundary line disputes.
The classic example of adverse possession is a neighbor who puts up a fence or paves a driveway several feet over their neighbor’s property line, without permission, and this “adverse possession” continues without objection for 20 consecutive years. Despite the fact that the neighbor’s fence or driveway encroaches the property line, under the adverse possession doctrine, the property owner may lose title to the disputed strip of land by not doing, saying or even knowing anything about it.
Requirements For Adverse Possession
A landowner can only obtain adverse possession by filing a lawsuit and establishing several elements of the claim. (My property law professor Bernie Keenan used a handy acronym called OCEAN to help students remember them). The use of another’s land must be Open, Continuous (for 20 years), Exclusive, Adverse and Notorious. Each element has its own specific requirements, and all adverse possession cases are very fact-specific. Adverse possession can also occur through multiple prior owners during the 20 year period under a theory called “tacking.” Adverse possession can also be in the form of an easement, or merely a right to use property, called a “prescriptive easement.” This could apply to the gamut of utility, pathway, or access easements.
Tips To Prevent Adverse Possession
The key to preventing adverse possession is to be proactive regarding your boundary lines and property rights. If you suspect an encroachment, obtain a full instrument survey, not a mortgage plot plan which can be inaccurate. If an encroachment is found, consult an attorney for further advice.
Generally, the most effective methods to prevent adverse possession are to:
- Bring a lawsuit to “quiet title”
- Physically demarcate lot lines with a fence, gate or the like (survey stakes alone may not be enough)
- Document giving permission to an encroaching neighbor by written document or agreement
- Submit your land to the Land Court registration system
- Posting “No trespassing” signs (can be helpful, but is not fail-safe)
The more land you own (especially raw woodlands) the more proactive you need to be.
Lastly, when buying new property, consider getting an enhanced title insurance policy which has coverage for encroachments and boundary issues, at a small premium over standard rates.
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