Phillips & Angley

Ownership rights, adverse possession and prescriptive easements

You may be one of many families here in Massachusetts whose family has owned the same piece of property for decades. You and your family have taken care of the property, perhaps built on it, paved it or otherwise use it consistently.

One day, a neighboring landowner comes to you and says that you are trespassing on a portion of his or her property. The other party told you to get off the land, but as far as you know, your family owns that land and has for a long time. This scenario often comes up when the land is up for sale or the new owner has moved in. When confronted with proof, you realize that the other party is -- technically -- right. Is there anything you can do?

You may have a case for adverse possession

Since your family has been openly using the piece of land in question for decades, it may be possible that you do not have to vacate it. If your use of the land qualifies, a court may grant you the right to use the property despite the owner's protests. You will need to show the following: 

  • You and your family actually continuously used the property for at least 20 years.
  • You and your family openly used the land without requesting permission from the actual owner.
  • You and your family didn't share the property in question with the landowner.

If you can prove the above elements, the court may grant you exclusive rights to the piece of property. The conditions that may come with this depend on the circumstances.

Or, you could have a case for a prescriptive easement

The primary difference between adverse possession and a prescriptive easement is the fact that, with this type of easement, your use does not have to be exclusive. Perhaps the owner also uses the piece of land or knows that you use it. For example, if you cross through your neighbor's land in order to reach yours, but your right to use the land is not in any deeds or other recorded document, or you or your family never really got permission from the owner.

As is the case with a claim for adverse possession, you will need to go before the court in order to obtain a prescriptive easement. On the other hand, if it is your property that someone else is on without your permission, you may still have time to regain control over the property in question.

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