How can a claim of adverse possession be defended against?

I recently had my property surveyed and found that the property line is about 10 feet further than previously thought. The land in question extends beyond an unkempt fence and overgrown brush onto the neighbor’s property. The neighbor claims that the property is his because of adverse possession. The land is overgrown, not being used, and is only implied to be theirs because of a fence. Does that qualify for adverse possession? And does having my property filed in Land Court have any effect? If the neighbor files paperwork to formally claim the land, are we notified, can it be challenged?

Asked on September 8, 2010 under Real Estate Law, Massachusetts

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Speak with a real estate attorney on how best to resolve this matter, settle the borders, etc. The short answer is that "adverse possession" must be ADVERSE--that is, the person claiming it must have known it was  NOT his and tried to claim it anyway. (There are other criteria as well, but that's a key one.) Therefore, if as a matter of mistake, you and your neighbor thought that certain land which is yours was actually his, that should not count for adverse possession, because thinking it was already his, he would not be able to claim it adversely to you. However, that's merely a general rule of thumb: the exact circumstances are critical. Therefore you should meet with a property attorney at the earlier possible opportunity. (Note: you could also mention to your neighbor  IF he some how establishes a claim to your land--let him know you're don't agree that he has a claim, but don't go into the details or argue with him--you will go to town to get the property taxes reapportioned appropriately; including retroactively to the greatest extent possible.)


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