By Robert S. Kutner, Esq. Partner, Casner & Edwards

It is not uncommon for a shed, garage, or driveway of an older home to be located close to a property line. Occasionally, a survey prepared at the time of a sale may show that the structure or driveway actually encroaches on a neighboring lot. Whether the problem of an encroachment will scuttle a sale may depend upon quick thinking by the real estate agent and prompt involvement of a qualified attorney.

 

This article will focus on two alternatives that may be raised with legal counsel: 1) a claim by the encroaching owner to title by “adverse possession” or 2) a claim for a “prescriptive easement” to continue a use. It may be possible to negotiate with the neighbor to grant an “easement” that allows an encroaching structure to remain in its location and to be repaired
or rebuilt when necessary, in exchange for the seller waiving a claim to title to the land.

 

Unlike traditional methods for transferring title to property which rely on legal documents filed in the Registry of Deeds, creating ownership through
adverse possession requires: 1) actual use of the property which may include ownership of an encroaching structure; 2) in an “open and notorious” manner; 3) to the exclusion of the record owner [neighbor] and without his permission; and provided that the adverse use: 4) is continuous;
5) for 20 years, and the owner of record fails to act to protect the owner’s interest, the record owner (neighbor) may lose title to the land through a petition in court filed by the encroaching owner.

A “prescriptive easement” is acquired in much the same way, but differs from adverse possession in that the “open and notorious” use of the property for 20 continuous years need not exclude use by the owner of record. A person having a prescriptive easement cannot acquire title to the property in court, but may acquire a right to continue to use the property in the same way in which he has used it during the 20 year period. Therefore, if an encroaching driveway was used to allow cars to pass and for parking vehicles for 20 continuous years, a court may order that the use be permitted to continue.

Use of Property
The requirement that use of property be “open and notorious” means that there is sufficient actual use to put the owner on notice of the hostile act of
possession. Actual knowledge of the owner of record is not required to be proven. Use may not be interrupted, but need not occur 365 days each year. Where property is used on a seasonal basis, such as to access and use a pond or lake each summer, use every summer is sufficient. Neither
adverse possession nor a prescriptive easement may be obtained where the
owner gives permission to use the property. On the other hand, implied
acquiescence or tacit agreement will not prevent creation of prescriptive
rights. As for the 20 year period of continuous use, Massachusetts
recognizes “tacking,” so that a new owner can count not only his period
of use, but that of the seller and the seller’s predecessors.

Situations that May Apply
A court decision, Brown v. Sneider, will serve as an illustration.
The parties had agreed to create a driveway easement to allow them to move cars back and forth to their respective properties. Defendant Sneider had been parking cars on the shared driveway as well as using it for access to his property. Parking was not part of their agreement. When the “rightful
owner” (neighbor) of the land on which the driveway was located sued to prevent parking on the easement, the court ruled that a “prescriptive easement” had been created permitting Sneider to continue to use the driveway for parking cars. The Court declined to find that complete title to
the land on which the driveway was located had passed through
“adverse possession” to Sneider, since the “rightful owner” had given
permission to use the driveway for access to Sneider’s property.

The principles of adverse possession and prescriptive easements may apply in other situations. It may be discovered that a shed or garage encroaches on a neighbor’s land. If it has been there for 20 years without permission, the owner of the encroaching structure may claim the land on which the
encroachment (shed or garage) sits. Similarly, prescriptive easements can be established to create the right to access across property of someone else or the right to use a lake or beach. A prescriptive easement can be acquired by the public, not just a specific person.

Where land is undeveloped, courts have wrestled with the question whether the doctrine of adverse possession applies. It can. One additional requirement for undeveloped land which has been added by the courts, according to a 1984 case, is that the land must have been enclosed or cultivated. Doing so helps prove that the use was “open and notorious” as well as exclusive.

In an interesting case decided in 1994, the Land Court ruled that permissive use can be changed to adverse use. In that case, Duncan v. DiFranco, an unmarried man and woman bought a house together in 1967. They both lived there until 1971 when the woman moved out with the couple’s three children, because she suspected the man of being unfaithful. The man changed the locks and continued to live in the house. In 1992 he filed a
lawsuit, seeking a declaration that he held title in his name alone. The Court ruled that the act of changing the locks constituted an ouster of the woman and the man was awarded title by adverse possession.

When an owner discovers that his property is being used without his permission and 20 years has not elapsed, there are several approaches he can use to avoid losing title by adverse possession: 1) take back physical possession continuously for at least one year; 2) file a writ of entry in court; or 3) file a petition to register the land, since registered land cannot be
taken through adverse possession or through a prescriptive easement.

It is even easier to protect property from a prescriptive easement. All an owner needs to do is to post a “notice of intent” on the premises for six consecutive days or personally serve a notice on the person using the easement. General Laws Chapter 187, Section 3. Upon receiving such notice, the person using the easement may file suit to establish the easement.

Real estate agents are encouraged to refer such issues to a qualified attorney for their clients and customers and not provide legal advice themselves. The issues may become thorny, particularly where the rights of the neighbor’s mortgage lender should be considered.

In conclusion, there are many situations in addition to sheds, garages, and driveways where adverse possession and prescriptive easements may apply, such as access to a beach, use of a sidewalk, and claim to a border between lots. In these situations, possession may be not just nine-tenths of the law, but one hundred percent.