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On Behalf of | Oct 30, 2015 | Land Use And Zoning |

The recent Appeals Court case of Paine v. Sexton, 2015 WL 5567171 (Mass. App. Ct. Sept. 23, 2015), offers a new twist on some black letter law pertaining to adverse possession of wooded areas.

As a reminder, to prevail on a claim of adverse possession, a plaintiff must show at least twenty years of use that was

  • nonpermissive,
  • actual,
  • open,
  • notorious,
  • exclusive, and
  • adverse.

See Kendall v. Selvaggio, 413 Mass. 619, 621-22 (1992). Additionally, with respect to wild or uncultivated lands, the rule has been strict by requiring the following:

The strict rule applicable to wild or woodlands is, however, but an application of the general rule to the circumstances presented by wild or uncultivated lands. That is to say, the nature of the occupancy and use must be such as to place the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right; in the circumstances of wild and unimproved land, a more pronounced occupation is needed to achieve that purpose. (emphasis added)

Paine at *2 (quoting Sea Pines Condominium II Assn. v. Steffens, 61 Mass.App.Ct. 838, 848 (2004)). Traditionally, this has been interpreted to mean that enclosure or fencing or cultivation of wooded or wild land areas is necessary to rise to the level of adverse possession. See, e.g., Senn v. Western Mass. Elec. Co., 18 Mass. App. Ct. 992, 993 (1984).

But, as the Paine court also notes, “‘whether a set of activities is sufficient to support a claim of adverse possession is inherently fact-specific.'” Id. (quoting Sea Pines).

Using this standard, the Appeals Court affirmed the Land Court’s decision that plaintiffs prevailed on their claim of adverse possession, notwithstanding that the wooded area in question was not fully enclosed, fenced, or reduced to cultivation.

The disputed area in Paine consisted of thirty-six acres, most of which was wooded, and has been operated as a commercial campground for approximately fifty-seven years. As outlined in the decision, the scope of plaintiffs’ activities that have taken place on the disputed area during that time is as follows:

created roadways and cleared campsites while still maintaining the natural environment. They have placed picnic tables, fire rings, and campsite numbers on the campsites seasonally and have built a house, erected two toilet facilities and an office building, enlarged parking areas, and created a volleyball pit, a paddock, and play areas. They constructed a wall of railroad ties along the road frontage, and fencing comprised of iron pipes and wires, from which they hung “no trespassing” signs, around much of the campground. However, the fencing and walls did not enclose the entirety of the campground. The plaintiffs controlled entry to the locus-charging an amount per person-and ousted those who did not pay. The plaintiffs also advertised the campground with signage along the highway, and in newspaper advertisements and brochures distributed in local stores. In addition, they have paid taxes on the property since the 1960s; however, it is unclear exactly which parcels the plaintiffs paid taxes on because many of the bills do not delineate lot numbers and acreage. The campground is operated seasonally and houses approximately 500 individuals during the summer weekends and fewer individuals during the weeks. Individuals bring their own tents and campers. (emphasis added)

Id. at *1. Additionally, between campsite areas, the land was maintained “in a predominantly natural state, for privacy and to preserve the wooded condition of the area.”

The Appeals Court was not swayed by the defendants’ argument that fencing was required in this instance:

In the circumstances of the present case, in which the plaintiffs operated the locus as a commercial campground advertised as such, improved the site by clearing campsites and constructing roadways, toilet buildings, and an office, and restricted access to paying customers, we are satisfied that the judge was correct in his assessment that the plaintiffs’ use was sufficient to place the record owners on notice that the plaintiffs occupied the locus under a claim of right. (citation omitted)


Given the nature of wild and wooded areas, and the potentially large size of some disputed areas, it will be interesting to monitor whether this case provides enough leverage for plaintiffs seeking adverse possession of lands that are not fully enclosed or cultivated as has been typically required.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2015 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.


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