On January 4, 2017, the Land Court, Scheier J., issued a decision in Stafford v. Flett, Land Court Docket No. 15 MISC 000134 (KFS), which granted declaratory judgment to P&A's client, the Defendant, declaring that she owns outright an area of her property that included a parking spot, grassy slope, staircase, and cobblestones and flagstones pavers (the "Disputed Area"), free and clear of any of the Plaintiff's claims. In its decision, the Court denied the Plaintiff's claims for adverse possession of or, in the alternative, a prescriptive easement over the Disputed Area. The Court agreed that the element of adverse use required for claims for adverse possession and prescriptive use rights was not established by the Plaintiff due to an oral license agreement allowing Plaintiff to use the Disputed Area, which agreement had been in place since the putatively-adverse use had begun.
The Plaintiff and Defendant's properties were once held in common ownership, with two houses existing on a single lot. In 1978, the common estate was subdivided into two lots - a front, rectangular lot, and a back, pork-chop lot. The front lot had very little backyard area, and the back lot had very little front yard area. Moreover, although the back lot had nominal frontage on a public road, its sole physical access was over the driveway on the front lot.
In 1982, the Plaintiff, her previous co-owner, and the previous owners of the Defendant's property reached an oral agreement to swap the use of similarly-sized portions of their abutting properties. The agreement permitted the Plaintiff and her family, who owned the back, pork-chop lot, to use the Disputed Area as an extension of their front yard for parking, access, and typical yard use. In exchange, the previous owner of the Defendant's property was permitted to use the pork-chop area of the Plaintiff's property as an extension of the backyard. From 1982 to 2014, the Plaintiff and her family used the Disputed Area consistent with the original agreement, including making minor improvements thereto. In 2014, P&A's client, the Defendant, acquired the front lot, at which the Disputed Area is located, and communicated to the Plaintiff that she was terminating the original oral license agreement. On April 21, 2015, the Plaintiff commenced this action.
To establish a prescriptive easement, the party asserting the claim must prove open, notorious, adverse and uninterrupted use of the property for a period of not less than twenty years. G.L. c. 187, § 2; Ryan v. Stavros, 348 Mass. 251, 261 (1964); Houghton v. Johnson, 71 Mass. App. Ct. 825, 835 (2008); Boothroyd v. Bogartz, 68 Mass. App. Ct. 40, 43-44 (2007). To establish adverse possession, the party asserting the claim must prove the same elements with the additional burden of proving that a party's use was exclusive. Ryan v. Stavros, 348 Mass. 251, 262 (1964).
At trial, P&A successfully proved that the use of the Disputed Area on its client's property did not meet the necessary element of adversity, for either Plaintiff's adverse possession or prescriptive easement claims. This permission was proven by testimony from each prior owner of the Defendant's property, who testified either that they had specific discussions with the Plaintiff about the land swap continuing, and/or (in the case of the son of the original licensing party) was otherwise made aware of the agreement and its general terms, and assented thereto. Thus, the Court found that the use of the Disputed Area had been permissive, from its inception, and therefore not adverse to the Defendant or her predecessors. In Massachusetts, evidence of express or implied permission rebuts the presumption of adverse use. Spencer v. Rabidou, 340 Mass. 91, 93 (1959). A license which includes permission to do some act or series of acts on the land without passing title is revocable. Id. Here, the initial oral, reciprocal agreement, between the Plaintiff and the predecessors-in-title to the Defendant, constituted a license. The Court found that "[w]hile the parties in this case did not state expressly what the arrangement was or commit its terms to writing, their discussions and actions were sufficient to create a license or an implied license."
Because the Plaintiff's claims of adverse possession and prescriptive easement failed, the Court ruled that P&A's client owns the entirety of the Disputed Area free and clear of any rights of the Plaintiff.
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Written by Robert Linnoila, Candidate for Juris Doctor, May 2017, Boston College Law School
Copyright (c) 2017 by Jeffrey T. Angley, P.C. All rights reserved.
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