Your project seems to be ready to break ground. You obtained
all your municipal permits and approvals. You closed on the
property. Your financing is in place. Your contractors are
locked in. You look forward to the culmination of months, if
not years, of hard work. What could go wrong?
There is a knock on the door. A Deputy Sheriff serves you
with a Complaint For Adverse Possession and a Notice of Lis
Pendens. That piece of land you need for access? A disgruntled
abutter now claims that he owns part of it by adverse possession
extending back more than 20 years. The Lis Pendens on record
now serves as a practical block to the start of your project.
How could this be? You did everything right: you had a tape
survey performed; you bought title insurance; you had very
competent counsel. Unfortunately, none of that really matters
now. You confront Superior Court litigation in which your
nemesis abutter avers that for more than 20 years he and his
predecessors in title (1) actually (2) have non-permissively
possessed that parcel (3) in an open fashion (4) on a continuous
basis (5) to the exclusion of others.
The title insurance company, likely with no regret, tells you
that its policy does not cover adverse possession claims. The
tape surveyor, somewhat defensively, tells you that he did not
observe any encroachments. Even worse, your lawyer tells you
that the case might not come to trial for two years.
What should you do? What can you do? The blame game isn’t
going to solve the problem. To a great extent, the response
will depend on what the disgruntled abutter wants from the
litigation. Typically, some want a slice of land or use of land
that you might or might not be able to grant. Others will want
cash. If you are able to resolve the claim quickly for a modest
concession then you would be well advised to do so in order to
avoid the delay, risk and expense of litigation.
If the disgruntled abutter refuses reasonable solutions, then
you attack the lawsuit and the claim with vigor. Each of
the necessary 5 elements to an adverse possession claim is
vulnerable to scrutiny in both factual and legal contexts. There
are nuances to each element that counsel can exploit. There
are more than 200 years of Massachusetts jurisprudence and
case law available to you that offer a fertile source for grounds
to defeat any one of the 5 elements. If any one element can be
defeated, then the entire adverse possession claim will fail.
Adverse possession represents something of a proverbial
Achilles’ heel to any developer. Nonetheless, the possibility
should be anticipated. Though there is not much a developer
can do on a preventative basis, consider negotiating for a flat
warranty in the Purchase & Sale Agreement from the seller on
the absence of any basis for such a claim. Instruct your tape
surveyor to do more than just eyeball the boundaries. Think
about eliciting an admission from the abutters that they have no
such claims. Be proactive on the possibility rather than passive.
The entire concept of title by adverse possession is antithetical
to the perspective of many businesspersons. For better or
worse, the concept remains alive and well in Massachusetts and
should not be ignored.
