Adverse Possession

Easement owner who exceeds the scope of the easement can obtain new use rights by prescription

Owner of an easement of passage that also uses the land without permission to park a car, use the area as a yard and maintain the lawn exceeds the scope of the easement and if done for the statutory period can obtain an easement by prescription for the longstanding uses. Savoie v. Zaniboni,  27 LCR 165, 2019 Mass. LCR LEXIS 58, 2019 WL 1511101 (Mass. Land Ct. 2019). The court applies the traditional presumption that uses of another's land are nonpermissive unless evidence of permission is present.

Adverse possessor must identify and provide evidence of the boundaries of the land that is being adversely possessed

An owner cannot claim part of the neighbor’s land by adverse possession without clear evidence of where the border is. In Coscina v. DiPetrillo, 186 A.3d 590 (R.I. 2018), the adverse possessor claimed occupation of parts of her neighbor’s land but court documents repeatedly changed the location of the claimed line between the properties. Not only must the adverse possessor establish where the line is that encompasses the property acquired by adverse possession but must show sufficient evidence to... Read more about Adverse possessor must identify and provide evidence of the boundaries of the land that is being adversely possessed

Town acquires prescriptive easement allowing public to use a road and abutting parcel

When a road and abutting triangle of land was used the public and maintained by the town, the town acquired a prescriptive easement for continued use of the road by the public. Athanasiou v. Board of Selectmen of Westhampton,82 N.E. 3d 436 (Mass. App. Ct. 2017). The town's highway superintendent maintained the area, plowed, sanded...

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Nonuse insufficient to show an easement was abandoned and it is not extinguished by prescription when a locked gate did not make it impossible for the easement owner to use the right of way

A locked gate did not extinguish the right to use an express easement when the fence was intended to keep out the public and did not prevent the easement owner from accessing the right of way. Twenty Bartlett, LLC v. Sgarano, 2018 Mass. Super. LEXIS 104 (Mass. Super. Ct. 2018). Only if an action renders use of an easement "practically impossible" can it start the statute of limitations running for a prescriptive easement that will extinguish the...

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Tree may be removed by owner of property where it first grew even if it grew to encroach on neighboring land and the neighboring owner does not want it removed

The Colorado Supreme Court has held that an owner may remove a tree on her own land even if it has grown over the borderline onto neighboring land even if the neighboring owner objects to removal of the tree. Love v. Klosky,2018 CO 20, 413 P.3d 1267 (Colo. 2018). In contrast, a border tree that was planted on the border itself becomes the...

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Court wrestles with the question of whether use of a pavement area without permission creates a prescriptive easement or adverse possession

When an owner uses a driveway or pavement area owned by a neighbor, and does with openly and without permission for the statutory period, does the owner get a prescriptive easement to use the area for the specific purposes to which the property was devoted or does the owner acquire full title to the area by adverse possession? The problem arises...

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Quitclaim deed does not negate good faith for purpose of adverse possession if the occupying parties did not actually know they were on land owned by another

Georgia is one of the few states that requires "good faith" in order to acquire property by adverse possession. That means that one cannot acquire property by adverse possession if one is knowingly occupying property of another. In McBee v. Aspire at Midtown Apts., L.P. 807 S.E.2d 455 (Ga. 2017), the question arose whether an owner was precluded from asserting...

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Out of court admission of permission from prior owners can defeat claim for adverse possession

The Wyoming Supreme Court has held that out of court statements made by an alleged adverse possessor that he was using the property with permission of the prior owners can be admitted to rebut the presumption that the use was nonpermissive. Galiher v. Johnson, , 2017 WY 31, 391 P.3d 1011 (Wyo. 2017) Read more about Out of court admission of permission from prior owners can defeat claim for adverse possession

Prescriptive easement denied because longstanding use of neighboring land was presumed to be permissive

When one occupies property belonging to a neighbor, most courts presume the occupation is adverse (meaning non-permissive), and this "possession" will ripen into ownership through adverse possession law after the statutory period runs out. Most states use the same presumption for prescriptive easements but a minority presume use is permissive rather than nonpermissive when limited use -- rather than full occupation or "possession" -- is at issue. In such cases, permissive use will be revocable and not ripen into a prescriptive easement. The Massachusetts Land Court applied the...

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