Frequently Asked Questions: Real Estate Law
What is adverse possession?
While it is customary to acquire real estate by a deed or by devise through a probate estate, or under the laws of intestacy, a person can also acquire title to real estate under a theory of ownership based upon a statute of limitations, which is known as adverse possession, requiring that a person, or his or her predecessors, be in exclusive possession for a minimum of twenty (20) years of real estate and also requiring that the person looking to establish title to real estate by adverse possession, establish in court that the use was open, notorious, exclusive, actual, non-permissive, and adverse to the claims of the owner of said real estate for the aforesaid minimum twenty year period of time. Any person looking to establish title to the real estate by adverse possession is charged with the burden of proving all of these elements, and thus, an action in court, either in the Superior Court or the Land Court, is the usual forum for such an adverse possession proceeding. If the person looking to establish title by adverse possession is using the subject property with the permission of the actual owner of the real estate, then an action for adverse possession will not be permissible, and furthermore, if the land that the claimant is looking to establish adverse possession to is registered land (sometimes known as Land Court property), then an action for adverse possession will not be possible either, since registered land is not subject to an adverse possession claim pursuant to long established law in the Commonwealth of Massachusetts.
Adverse possession allows the claimant to "tack on" the use and activity of persons using the property prior to the claimant's acquisition/use of the property. For instance, in a situation where a person looking to establish title to real estate by adverse possession, acquired property from a grantor who also was in the process of acquiring the title by adverse possession, then the new owner/claimant can "tack on" the prior owner's period of adverse possession and use for purposes of establishing the required non-permissive and continuous twenty (20) years of use.