Adverse Possession Claims Against Municipalities in Massachusetts

Adverse Possession Claims Against Municipalities in Massachusetts

Property Owner's Rights vs. Claimed Public Land

Adverse Possession Claims and Municipalities

In Massachusetts adverse possession is not usually available against a public way. 

M.G.L. c. 86, §3.  See, Henry v. Melrose, 304 Mass. 205, 206 (1939).  A way becomes public by either  a formal laying out of the public way by a municipality in a manner prescribed by M.G.L. c. 82, §§ 1-32; by  prescription; or prior to the year 1846, by a land owner’s dedication of the land for permanent public use and an acceptance of the land for public use by the municipality. DesCoteau v. Town of Newbury, Mass. Land Ct, docket no. 217369 (Feb. 5, 1997, Scheier J.),  citing Fenn v. Middleborough, 7 Mass. App. Ct. 80, 83-84 (1979) (citation omitted).  M.G.L. c. 260, § 31 provides ‘No action for recovery of land shall be commenced by or in behalf of the commonwealth, except within twenty years after its right or title thereto first accrued, or within twenty years after it or those under whom it claims have been seized or possessed of the premises ….” The provision is applicable to cities and towns.  See, Town of Sandwich v. Quirk, 409 Mass. 380, 382 (1991). 

In 1987, M.G.L. c. 260, § 31 was amended to include “that this section shall not bar action by or on behalf of the commonwealth or any political subdivision thereof, for the recovery of land or interests in land held for … public purpose.”  The December 9, 1987 amendment does not apply when the claim for adverse possession accrued before the 1987 amendment.  St. 1987, c. 564, § 46. 

Adverse possession claims against Massachusetts municipalities can be allowed if the claim ripened prior to the 1987 amendment of M.G.L. c. 260, §31. 

See, DesCoteau v. Town of Newbury, Mass. Land Ct, docket no. 217369 (Feb. 5, 1997, Scheier J.).  In DesCoteau, the Massachusetts Land Court granted summary judgment in favor of the plaintiff against the Town of Newbury, Massachusetts where the plaintiff claimed adverse possession of a parcel of land which the Town of Newbury claimed was a public way.  The court held that the Town of Newbury failed to establish that the locus and part of a boulevard in dispute was a public way and since the plaintiff’s claim of adverse possession had accrued before the 1987 amendment of M.G.L. c. 260, §31 the plaintiffs had acquired the locus by adverse possession.

About the Author

Attorney Jeff Clark has over twenty four years experience and is licensed to practice law in the Massachusetts and New Hampshire state and federal courts. Attorney Clark has extensive experience in matters involving: litigation, creditor rights, real estate, civil rights, municipal law, insurance, and title curative. Attorney Clark is the author of numerous seminar materials and articles on topics involving real estate law, insurance law, municipal law, and law office technology and has been a speaker at CLE courses and seminars.