Appeals Court Revisits Adverse Possession of Undeveloped Land

The Massachusetts Appeals Court recently reviewed adverse possession of wild and wooded areas. In Paine v. Sexton, 88 Mass. App. Ct. 389 (2015), the Plaintiff campground operators asserted rights to property based on record title and adverse possession.  While it did not validate record title, the Court recognized the Plaintiffs’ adverse possession claims.  In doing so, the Court departed from the traditional requirements for adverse possession of land in its natural state.  For owners of large tracts of undeveloped land, this case serves as a reminder of the risks posed by adverse possession.

The Paine family has operated a campground on a portion of a 36 acre site in Wellfleet, Massachusetts for over 50 years. This occupied portion of the site includes typical campground improvements: roadways, picnic tables, fire pits, toilet facilities, an office building, fencing and parking areas. But as the Court noted, the areas between campsites and the remainder of the site are undisturbed.

In the traditional sense, adverse possession requires occupancy which is “actual, open, notorious, exclusive and adverse for twenty years.” Ryan v. Stavros, 348 Mass. 251, 262 (1964).  Courts have also required “a more pronounced occupation” for adverse possession of wild and wooded areas.  Sea Pines Condominium II Association v. Steffens, 61 Mass. App. Ct. 838, 848 (2004).  The test for pronounced occupation has often been whether land has been enclosed or cultivated; harvesting timber and pasturing animals alone has not satisfied this burden.  See Senn v. Western Massachusetts Electric Company, 18 Mass. App. Ct. 992, 993 (1984).

In Paine, the Court took a different approach and focused on the Plaintiffs’ specific use: the clearing of sites; construction of buildings and roadways; and restriction of access to paying customers. The Court concluded these steps put record owners on notice of the Plaintiffs’ occupancy and thereby established adverse possession, despite the lack of complete enclosure or cultivation.  Subsequently, the Court recognized the Plaintiffs’ color of title claim to the entire 36 acres after reviewing (but not validating) their purported record title.

The Court’s ruling in Paine departed from the requirement of pronounced occupation for adverse possession of land in its natural state.   At the same time, it confirms the fact-specific nature of these cases and the need for more in claims associated with wild and wooded areas.  For owners of large tracts of undeveloped land, it also serves as a reminder of the importance of vigilance in monitoring unauthorized use and activity.

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