Vetstein Law Group: The Anatomy of a Massachusetts Adverse Possession Trial: A View from Counsel’s Table

Vetstein Law Group: The Anatomy of a Massachusetts Adverse Possession Trial: A View from Counsel’s Table

By Richard D. Vetstein, ESQ

Effective Preparation and Historical Timeline Key To Trial

I just completed a four day jury waived trial in an adverse possession case in Superior Court. I wanted to share some of my experience as a Massachusetts adverse possession attorney, and what I learned during this case. (For confidentiality reasons, I will not disclose the name of the case or the county in which it was brought). We are waiting for a decision from the judge, which will take several months.

Side Property Line Dispute

The case was a fight over land between two homes in a suburban town.  The dispute arose after my client, "Ms. Jones," surveyed her property in anticipation of doing an addition project. The survey unfortunately revealed that a portion of the driveway and nearby retaining wall owned by her next door neighbor, "Mr. and Mrs. Smith," encroached the side lot line. Efforts to resolve the encroachment dispute were unsuccessful, and the Smiths ultimately filed the adverse possession lawsuit, claiming that they had used not only the small encroached area, but a much larger 2,200 square foot area of Ms. Jones' side yard, for more than 40 years.

Tracking Down Old Owners

Since the Smiths were claiming adverse possession going back to the 1960's, the first and most important thing we had to do was to track down all the old owners of my client's property and put together an accurate historical timeline of the property.  Including my client, there were seven owners of the property! This was the only way my client could mount a defense against the Smith's claim, since the Smiths owned their property all that time. One of the old owners lived in Florida, and he came up to testify about having pig roasts near the disputed area, among other stories. Other former owners testified and a few were not exactly thrilled to be dragged into court. That's the nature of the beast.

Proving The Timeline

Next, we had to demonstrate the historical use of the disputed area over four decades. These are very factually intensive cases. The key to every adverse possession case is what and how the parties actually used the disputed area. The parties' knowledge or lack thereof of the true boundary line is really not the important issue. Generally, the more intense the use and the more the claimant takes action to exclude the other party from using the disputed land, the better the claim for adverse possession. Conversely, the less intense the use, the less successful the claim. Still, adverse possession is a very difficult claim to win as the law does not favor taking someone's land.

Some important questions in any Massachusetts adverse possession case are:  Did the plaintiff mow the lawn? Did they maintain any landscaping? Did they install a fence or other barrier? Did they demarcate where they used the land? Did they make any permanent improvements to the disputed area? Did they plant anything or install a garden? Did they clear brush? Did they cut down trees or plant new trees? Did the defendant grant permission to use the disputed area. (Permissive use destroys an adverse possession case).

Preparation Is Key

Compared to my opposing counsel, I had a lot more work on my side with triple the number of testifying witnesses and cross examination of the claimants. I prepared for a solid two weeks before this trial, and by the trial, I knew every blade of grass and rock on the disputed area.  I also had deposition testimony of the claimants which I used to impeach them when they inevitably changed their stories or failed to remember key details. I also had blowups of aerial photos of the property from Bing Maps which were very helpful. Lastly, I convinced the trial judge to take a "view" of the property, and he did visit the property with counsel the day after the trial was over.

We are filing post-trial briefs at the end of August, and then the judge will make a decision. I'll let you know how it turns out.

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 Mr. Vetstein has represented clients in hundreds of lawsuits and disputes involving business, real estate, construction, condominium, zoning, environmental, banking and financial services, employment, and personal injury law.

In real estate matters, Mr. Vetstein handles residential and commercial transactions and closings. In land use, zoning, and licensing matters, Mr. Vetstein offers his clients an inside perspective as a former board member of the Sudbury Zoning Board of Appeals. Mr. Vetstein has an active real estate litigation practice, and was a former outside claims counsel for a national title company.

Drawing on his own business degree and experience, Mr. Vetstein assists his business clients with new business start ups, acquisitions, sales, contract, employment issues, trademarks, and succession planning. Mr. Vetstein also litigates, arbitrates and mediates a wide variety of commercial disputes.

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