Adverse possession isn’t just for law school hypotheticals and bar examinations. It’s a genuine legal claim that often arises in boundary disputes and other real estate litigation matters. Even if the property at stake is small, the consequences of these disputes are not: adverse possession cases are often heavily disputed and contentious among landowners. Properly preparing and trying an adverse possession claim is the key to a successful outcome.
1. Plead Alternative Causes of Action
When preparing an adverse possession claim, take full advantage of Rule 8 of the Rules of Civil Procedure, allowing alternative pleading. With few exceptions, one should plead a claim of an easement by prescription along with adverse possession. An easement by prescription provides a party with a permanent right to use a portion of property. In contrast, adverse possession grants a party ownership of the disputed property. The principal distinction between these two causes of actions is the element of exclusive use, which is not required for an easement by prescription. Consider other forms of equitable relief to protect your client’s interests if the court does not find that you met the elements of an adverse possession claim.
2. Be Specific About the Property You Are Seeking
In preparing an adverse possession claim, stating the disputed property in general terms is usually sufficient. Include enough information to put the opposing party on notice about your claim, but providing a metes and bounds property description is unnecessary. However, most courts will probably want a more specific description of the disputed property as part of the final court order or judgment, in the form of a survey or plot plan. A survey or plot plan should be part of the discussion with your client about the costs of one of these cases, and should be ordered promptly. Pay attention to whether a survey or plot plan had previously been prepared for the property. If one had been, it can be cost-effective to engage the same surveyor, who will not need to “recreate the wheel” in preparing a survey or plot plan for the disputed property.
3. Get Creative in Researching the Chain of Title for the Disputed Property
Adverse possession often requires the tacking of one’s claim, by showing that prior persons used the disputed property years before, for the purpose of the required time period (anywhere from 10 to 21 years, depending on your state). Finding these prior owners can be a challenge. Land records, social media and online search services are helpful resources in tracking down these persons. Not surprisingly, some of these persons may no longer live in the area, and may not be easily accessible for a trial. If so, consider seeking leave to take their trial testimony by deposition.
4. Bench Trial or Jury?
Depending on your jurisdiction, a jury trial may be an option for an adverse possession claim. If so, weigh the pros and cons of both a jury and bench trial. I have found that many non-lawyers (and even lawyers in different practice areas) do not grasp the concept of an adverse possession claim, and may be reluctant to award ownership of property to a so-called “trespasser.” If your state has a specific court that specializes in real estate (such as Massachusetts’s Land Court), consider the benefits that these specialty courts may provide for these types of disputes.
Adam T. Sherwin is a Massachusetts real estate litigation attorney based in Charlestown and a member of the MBA's Real Estate Section Council. Learn more at www.sherwinlawfirm.com.