|Erin R. Boisvert is an associate with the Concord firm of McWalter, Barron & Boisvert in Concord. She was lead counsel, representing Albert Lawrence in the case of Lawrence v. Concord.
The law of adverse possession has been in place in this country for well more than 100 years. In the 19th century, the country was in need of laws that would encourage development of land and resolve title conflicts.1 "While English law looked askance at adverse possession, it was 'eagerly embraced in the United States'. In 1845, the Chief Justice of Pennsylvania rationalized the popularity of the rule not on the basis of the merit of the occupant's claim, 'for he has none, but for the demerit of his antagonist in delaying the contest beyond the period assigned for it, when papers may be lost, facts forgotten, or witnesses dead'. This doctrine, which seemed to 'favor settlers against absentee owners' was especially favored in the West; the further one proceeded west, 'the shorter the period of time needed for adverse possession to ripen into title.'"2
In Lawrence v. Concord,3 the Supreme Judicial Court reversed the decisions of the superior and appeals courts and affirmed the ancient doctrine properly validating the claim of title of a trespasser where the true owner had failed to protect its rights for a lengthy period of time notwithstanding its lack of knowledge of its interest in the property. There are two important points to extract from the case: (1) a true owner can lose title to property by adverse possession even if he had no knowledge of his interest in the property; and (2) in some circumstances, title to property owned by a municipality can be acquired by adverse possession.
The subject of the case is a small house on Main Street in Concord that was once owned by Mary Burke. Under the terms of her 1941 will, Burke left her home to her daughter, Helen, "never to be sold." The will further provided that after Helen dies, the property was to go to her adopted daughter, Harriet Burke Frazier. If no children survived Harriet, the property was to go "to the town to use as they see fit and proceeds from same to be used for better education of some deserving children." Mary Burke died in 1942 and the property passed to Helen. In 1964, Helen conveyed her life interest to Harriet, and then in 1965 Harriet died with no children. Upon Harriet's death, the property passed to the town of Concord.
In 1942, Mary Burke's will was properly probated, however the probate documents do not indicate that the town of Concord was notified of its remainder interest. At that time, there was no requirement that beneficiaries who were not heirs receive notice either before or after the allowance of the will. In 1954, the statute was amended to add such a requirement.
At the time of her death in 1965, Harriet was married to Joseph Frazier. After his wife's death, Joe lived in the property for a short period. He then rented it to tenants until 1974 when he moved back in and resided in the house until his death in 1996. From 1964 through 1996, Joe lived in the house openly as a typical homeowner. He paid taxes, he gardened, he sat out on the porch, he socialized with neighbors, etc. When Joe died, the property passed by will to his friend, Albert Lawrence.
In the process of the probate of Joe's will, the town of Concord was notified of its potential interest in the property. The town then took the property by eminent domain and paid no damages to Lawrence based upon its contention that it was the true owner. Lawrence petitioned the court for damages on the ground that Joseph Frazier had acquired title by adverse possession and properly devised the property to him. The town contested the adverse possession claim on essentially two grounds: (1) that title was not established where it had no notice of its interest; and (2) that it held the property for a public purpose barring an adverse possession claim.
The elements of adverse possession are extremely well known. "A party claiming title to land through adverse possession must establish actual, open, exclusive, and nonpermissive use for a continuous period of twenty years."4 The Appeals Court, in Lawrence v. Concord,5 confirmed that Frazier was in continuous, exclusive, adverse possession of the property from 1965 until 1996, and that he used the property as a typical homeowner.
However, despite its seeming acknowledgment that all of the elements were satisfied, the Appeals Court affirmed the lower court's judgment in favor of the town. In a confusing opinion, the Appeals Court described the inquiry into whether Frazier's use was open as "metaphysical" and held that
Frazier's use was not open so as to put the town on notice that its property rights were at risk. Although Frazier did not attempt to conceal that he was using the property, his use was not open because the true owner, the town, neither knew nor reasonably should have known of its ownership or that the nature of Frazier's use changed when Harriet died, becoming adverse to the town's ownership. Neither was Frazier's use notorious. Nothing in Frazier's conduct or use should have alerted the town, or anyone else, to the town's interest. Other than Frazier himself, there was no one with actual or constructive knowledge that Harriet's interest in the property ended when she died childless. Similarly, other than Frazier, whose interest was contrary, there was no one either with knowledge that Mary Burke's specific devise to the town was being thwarted or with an interest in ascertaining that her devise be honored.6
Essentially, the Appeals Court revised the law of adverse possession by adding a new element: the requirement that the true owner have knowledge of its interest in the property. The court also placed an affirmative duty upon the trespasser to convey that information to the true owner if it was known to him. At the expense of the preservation of the effectiveness of the doctrine, the Appeals Court sought to ensure the true owner a reasonable opportunity to protect his property rights.
Fortunately for the legal community, it is not necessary to attempt to interpret the nature of the full impact the decision would have had on the doctrine of adverse possession. The Supreme Judicial Court restored the law to its former five simple elements and ensured its continued effectiveness.
The SJC correctly held that the town's lack of knowledge of its interest in the property was irrelevant to the claimant's ability to meet the open and notorious requirements. The purpose of the two elements is to put the true owner on notice of the trespasser's possession so that he may vindicate his rights.7 However, there is no requirement that the true owner have actual knowledge of such use. Open and notorious use of property is deemed to place the true owner on constructive notice of such use, and it is immaterial whether the true owner actually learns of that use or not.8 Further, the focus of the open and notorious elements is solely on the use or possession of the property.9
The SJC has definitively determined that an owner's lack of knowledge of its interest is neither an element nor a defense in an action for adverse possession.10 A requirement of such knowledge is inconsistent with the purpose served by the doctrine of adverse possession: to clear land titles and thereby eliminate barriers to worthwhile use of the land.11 Requiring actual knowledge of dispossession or of one's interest would allow long dormant claims to title to "rise from the dustbin of history and many titles would become unsettled."12
Obviously, one who has no knowledge of his interest in property has no opportunity to protect his property rights. However, in order to preserve the effectiveness of adverse possession in clearing land titles, it is appropriate to allow such owners to lose their rights when they fail to act. The valid public purpose of the doctrine outweighs the rights of a few individuals or entities who, for benign reasons, may not have received notice of an interest in real property.
Adverse possession of municipal property
In most jurisdictions, government-owned property is immune from claims of adverse possession or prescription. Massachusetts is an exception. Under the provisions of Massachusetts General Laws chapter 260 section 31, the 20-year statute of limitations for recovery of land applies to the commonwealth and its political subdivisions except in connection with land "held for conservation, open space, parks, recreation, water protection, wildlife protection or other public purpose."
In Lawrence, the claimant was able to take advantage of the grandfather clause enacted with the public purpose exception included in the statute. The amendment that added the exception was enacted in December 1987 and included language that would prevent it from abrogating the rights of one who established title by adverse possession more than 20 years before the effective date of the law. Frazier's possession began in 1965 and title was established in 1985. Thus, the public purpose exception to Chapter 260, Section 31 was not inapplicable in the case.
The town, however, disputed Frazier's possession in the early years and argued that the public purpose exception of Chapter 260, Section 31 was a bar to the acquisition of title by adverse possession. There is no case of which this author is aware that specifically interprets the term "public purpose" in connection with Chapter 260, Section 31. In Sandwich v. Quirk,13 the SJC held that a town's taking of land for nonpayment of rent interrupts the running of the 20-year statute of limitations. As part of its analysis, the court cited Chapter 260, Section 31 and suggested without deciding that the term "public purpose" in the statue may be synonymous with "municipal purpose" which is the term used in Chapter 60, Section 77.14 Under the provisions of Chapter 60, Section 77, after a town forecloses "rights of redemption under a tax title or taking, as hereinbefore provided, the land shall thereafter be held . . . for municipal purposes."
The term "municipal purpose," however, has a much broader reach than what seems to have been intended by the legislature when it included the public purpose exception in Chapter 260, Section 31. The 1987 amendment to Chapter 260, Section 31 was enacted as part of the Acts of 1987 Chapter 564, which is entitled "An Act Providing for an Environmental Enhancement and Protection Program for the Commonwealth." The act was designed to provide for open space acquisition and preservation programs in four programmatic areas: "public access/conservation, preservation assistance to cities and towns, restoration of recreational facilities, and protection of the Commonwealth's water resources."15 Therefore, where the amendment refers to an exception for land held for conservation, open space, parks, recreation, water protection, wildlife protection or other public purpose, it is clear from the legislative history that the public purpose contemplated is one which would preserve open space or enhance the other stated environmentally related goals of the statute. The statute does not seem to provide an exception for property held by a governmental unit for any type of public use.
Another means of ruling out a broad interpretation of the term "public purpose" is the application of the doctrine of ejusdem generis: "Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words. The doctrine is most appropriate when a series of several terms is listed which concludes with the disputed language."16 In the public purpose exception, each of the words in the series preceding "public purpose" describes land held for recreation purposes or undeveloped land to be preserved for open space or wildlife. The final general language "other public purpose" must be construed to refer to a purpose similar in nature to those described by the preceding words.
The legislative history and the construction of the statute seem to rule out an interpretation that would prevent accrual of adverse rights in property held by a governmental unit for general public or municipal purposes.
The Appeals Court seemed to be inclined to attribute some enhanced level of wrongdoing to Joseph Frazier, referring to the possibility that he may have known that he was not the true owner and other benign activities. However, in adverse possession cases, all trespassers are wrongdoers until the statute expires. The trespasser's state of mind, level of knowledge and, in some cases, possibly tortious purpose are irrelevant. In the absence of fraud, title is acquired by adverse possession, even in some circumstances, in government-owned property, if the five original elements are met. The SJC restored strength to the doctrine of adverse possession by properly rejecting the town's contention that its lack of awareness of its interest in the property created a bar to the accrual of adverse rights.
1. Edwin W. Tucker, A History of American Law by Lawrence M. Friedman, 86 Harv. L. Rev. 1625, 1628 (1973) (book review).[back]
2. Id. (quoting Lawrence M. Friedman, A History of American Law 360-61 (1973)).[back]
3. 439 Mass. 416 (2003).[back]
4. Totman v. Malloy, 431 Mass. 143, 145 (2000).[back]
5. 56 Mass. App. Ct. 70, 73 (2002).[back]
6. Lawrence, 56 Mass. App. Ct. at 74.[back]
7. Lawrence v. Concord, 439 Mass. at 421.[back]
8. Id. at 422.[back]
11. Sandwich v. Quirk, 409 Mass. 380 (1991).[back]
12. Allen v. Batchelder, 17 Mass. App. Ct. 453, 457, 459 (1984).[back]
13. 409 Mass. 380 (1991).[back]
14. Sandwich, 409 Mass. at n.6. [back]
15. S. Ways & Means Comm. S2039 at 1, 4 (Oct. 8, 1987).[back]
16. Banushi v. Dorfman, 438 Mass. 242, 244 (2002).[back]