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Adverse Possession:BasicsBy Konstantine Kyros, Esq.
Adverse possession is a way of acquiring title to real property by physically occupying it for a long period of time. As strange as it may seem to the non-lawyer, you may acquire property without the consent of the actual title holder if you possess it long enough and meet the legal requirements discussed below. Also discussed below are the theories that underlie this doctrine.
In Massachusetts you must possess the property being claimed, continuously for 20 years (Mass. Gen. L. ch. 260, sec.21) To meet the requirements for adverse possession you must also show that:
1) You were the exclusive possessor and actually entered the property.
2) Your possession must be open and notorious--your possession must be seen. The possession must be appropriate to the type, size and use of the land. Enclosures, houses, cabins, payment of taxes all help establish your claim. The general idea is to give the owner reasonable notice that you are in possession and give him the opportunity to eject you.
3) Your possession must be adverse to the owners claim, in other words without the owners consent. If the owner has given permission for you to be on the property you can't claim the property adversely.
4) Your possession must be continuous (for 20 years). If your entry was only occasional you may be deemed a trespasser and not be able to claim adverse possession. However, certain seasonal or intermittent uses satisfy the continuous element if the average owner of a particular piece of property would use it in that manner (e.g. a summer home).
Continuity can also be established by adding together or "tacking" successive adverse possessors. For example if A possesses the land for 15 years and then gives it to B who possesses it for 5 years, B may then claim title by adverse possession by tacking the two claims.
Massachusetts has a special land registration system in which a question of title can be brought to the Land Court which investigates and evaluates the merits of the claim. Based on its findings the court can issue a new certificate of title. A further advantage of this procedure (to the owner) is that property registered through the land court cannot be adversely possessed.
The Theory behind Adverse Possession
The idea that one can simply acquire property by sitting on it seems very strange in a free society based upon a conception of property rights. One line of reasoning, advanced by Oliver Wendell Holmes suggests that the purpose of the doctrine is to protect the expectations of those who have used property for a long time. Richard Posner (founder of the law and economics school of thought), reasons that the purpose of adverse possession is to preserve the status quo. Posner argues that the adverse possessor has become attached to the property and losing it would be a serious loss, whereas the title holder would view the acquisition as a sudden, unexpected increase in his wealth. Therefore, Posner argues it is better (economically speaking) to allow the adverse possessor to keep the property. A somewhat related idea is that the doctrine rewards the productive use of land, while penalizing the unproductive owner who sleeps on his rights.
The other line of thought argues that adverse possession really functions to protect property rights. The doctrine protects ownership by barring stale claims and errors in the title records. The idea is that as time passes it becomes more difficult and ultimately not worthwhile to seek out every remote claim to the disputed property. The doctrine is sort of designed to flush the system of errors. As seminal law review article states the idea is not to "reward the diligent trespasser for his wrong nor yet to penalize the negligent and dormant owner for sleeping upon his rights; the great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and correct errors in conveyancing." Henry Ballantine, "Title by Adverse Possession," 32 Harv. L. Rev. 135 (1918). Although the doctrine is not designed to protect wrong doers or "diligent trespassers" it does so because it is necessary to protect valid titles from various errors and the passage of time.
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