my neighbor has a fence five feet from the edge of his property. it’s been there for 20+ years. is that five feet now mine?

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my neighbor has a fence five feet from the edge of his property. it’s been there for 20+ years. is that five feet now mine?

Asked on May 29, 2009 under Real Estate Law, Massachusetts

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

I think what your are thinking of here is something called "adverse possession".

Adverse possession is a way of acquiring title to real property by physically occupying it for a long period of time.  As strange as it may seem, you may acquire property without the consent of the actual title holder if you possess it long enough and meet the legal requirements discussed below.

In Massachusetts you must possess the property being claimed, continuously for 20 years (Mass. Gen. L. ch. 260, sec.21) To meet the requirements for adverse possession you must also show that:

1) You were the exclusive possessor and actually entered the property.

2) Your possession must be open and notorious--your possession must be seen.  The possession must be appropriate to the type, size and use of the land.  Enclosures, houses, cabins, payment of taxes all help establish your claim.  The general idea is to give the owner reasonable notice that you are in possession and give him the opportunity to eject you.

3) Your possession must be adverse to the owners claim, in other words without the owners consent.  If the owner has given permission for you to be on the property you can't claim the property adversely.

4) Your possession must be continuous (for 20 years).  If your entry was only occasional you may be deemed a trespasser and not be able to claim adverse possession.  However, certain seasonal or intermittent uses satisfy the continuous element if the average owner of a particular piece of property would use it in that manner (e.g. a vacation home).

Massachusetts has a special land registration system in which a question of title can be brought to the Land Court which investigates and evaluates the merits of the claim.  Based on its findings the court can issue a new certificate of title. 

Hope this helps.


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