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 because an owner who parks a car on a driveway that encroaches on neighboring land may be viewed as undertaking a limited use of the land (use for parking purposes) or may be viewed as acting as an owner with full control of the property being used.


Often the question will turn on whether the use of the area was exclusive, i.e., whether the owner of record title was excluded from the property. If the record owner was excluded, adverse possession is likely to be awarded. If the parties jointly used the area then only a prescriptive easement will be awarded. If there is merely evidence of non-use by the record owner, the question is much harder.


The Massachusetts Appeals Court wrestled with these issues in Paulini Loam, LLC v. Colbea Enterprises, LLC,93 Mass. App. Ct. 1111, 2018 Mass. App. Unpub. LEXIS 415 (Mass. App. Ct. 2018). The trial court had found a prescriptive easement in pavement area used for many years but the appeals court reversed and held that the owner had established adverse possession, not merely a prescriptive easement, when it openly used the pavement area for many years as part of its car wash.


The court also upheld the trial court's refusal to order part of the car wash structure to be demolished even though it encroached on neighboring land. The court fouind that the encroaching structure had been built innocently (without knowledge that it went over the border), that the encroachment was minimal (less than ten percent of the land), and that the cost of removing the structure outweighed the benefit to the owner of the land on which it sat. The court therefore applied the "relative hardship" doctrine and refused to order the structure to be demolished.