47 Factory Street, Nashua, NH 03060

Boundary and Title Disputes

Contracts and LitigationBoundary disputes occur when one landowner may believe that their neighbor is on or using land that is past their own property line and onto theirs.  This may also involve one person buying property from another, and discovering discrepancies on the deed as to where the boundary line of the property is compared to a survey of the land.  In either case, a boundary survey is a helpful starting point to determine where the property line according to the deed.  A boundary survey measures and determines the actual physical extent of property ownership, typically witnessed by monuments or markers, and a map, or plat, is drawn from the data.

When there is a boundary line dispute between neighboring properties, many people learn first of the doctrine of “adverse possession”.  This is a legal principle where ownership of a parcel of property (or a portion thereof) can change without payment and against the will of the owner.  Therefore, you could obtain a slice of your neighbor’s property simply by using it for a period of time along with some additional requirements.  In order to acquire property through adverse possession, the adverse possessor must show certain requirements regarding the land.  For example, in New Hampshire, the use of the land must be continuous, exclusive and uninterrupted for 20 years. Mastroianni v. Wercinski, 158 N.H. 380, 382 (2009).  This means that if someone is using an abutting tract of land that is really their neighbors, in order to actually acquire it through adverse possession, the neighbor must be using it, excluding anyone else from using it, as if he actually owned it, and must continue to do so for 20 years.  Further, adverse means that the neighbor must be using the land without the permission of the owner, and using it against the owner’s interests which could simply be that it is being used only for the neighbor’s benefit.

Similarly in Massachusetts, the property being claimed must be possessed continuously for at least 20 years. Ryan v. Stavros, 348 Mass. 251, 262 (1964).  In addition, claimants must also show:

  1. They are the only possessor and have physically entered the property.
  2. Possession is open and notorious. This means that it is generally well-known in the community that they live there.  Building houses, cabins, or outbuildings and paying taxes on them also establishes a claim on the land.
  3. They must possess the land without the owner’s consent. If they have permission to be on the land from the owner, then they cannot claim the property under adverse possession.
  4. They must possess the property in question continuously for the 20-year period. Occasionally living on the property does not meet the requirement.  However, different landowners may combine the years that they have adversely used the property to meet the statute of limitations, or the 20 years.  So long as both landowners satisfy the other requirements to adversely possess, the last owner can combine the previous years of adverse possession with his own to meet the 20 years and make a claim to the land. 

In order to avoid having your land adversely possessed, you can take certain steps to ensure your property is only being used by you.  For example, hire a surveyor to confirm your actual property lines and mark those lines with fences.  Further, post no trespassing signs and ensure that your title is clear.  If not, hire an attorney to file a lawsuit if necessary in order to remove your neighbor from the section of your property.  

However, it is not always necessary to resolve a boundary dispute through a claim of adverse possession.  Alternative relief may be available under the doctrine of acquiescence.  The law of acquiescence is concerned with adjoining property owners, both of whom are mistaken about where the line between their properties is.  Adjoining property owners may treat a boundary line, often a fence, as the property line.  If the boundary line is not the recorded property line, this results in one property owner possessing what is actually the other property owner’s land.  Regardless of the innocent nature of this mistake, the property owner whose land is being possessed by another would ordinarily have a cause of action against the other property owner to recover possession of the land.  However, if the doctrine of acquiescence applies, the property owner of record is no longer able to enforce his title, and the other property owner will gain title.

Although sometimes modified by state, acquiescence to a boundary line between properties can change ownership in three ways:

  1. Dispute and Agreement – The neighboring landowners have an actual disagreement as to the location of the boundary line, and ultimately agree upon a boundary line which is not consistent with that set forth in their deeds.
  2. Acquiescence for the Statutory Period – The neighboring landowners treat a particular boundary line as the dividing line between their properties for the statutory period, even though it differs from the boundary line defined by their deeds. The statutory period (“statute of limitations”) for acquiescence can be quite long, and is often fifteen years or longer in duration.
  3. Acquiescence Arising from Intention to Deed to a Marked Boundary – A grantor intends to deed property to a physical boundary but mistakenly uses an incorrect legal description in the actual deed.

In Massachusetts, mere acquiescence of a fence or barrier is not enough to establish a boundary.  Ryan v. Stavros, 348 Mass. 251, 261 (1964).  Therefore, if a description of land is ambiguous in a deed, litigating the boundary line will involve extrinsic evidence by the attorney to show where the line is based on the construction of the title and actions manifested by previous owners.  In New Hampshire, boundaries may be established by acquiescence where the parties have recognized a certain boundary as being the true one and have occupied their respective lots accordingly for twenty years or more.  O’Hearne v. McClammer, 163 N.H. 430, 435 (2012).

No matter what your boundary or title dispute is, the experienced attorneys at Smith-Weiss Shepard, P.C. can assist you with a resolution.

Providing Practical Advice.  Achieving Results

Located on Factory Street in downtown Nashua, New Hampshire for over 45 years, Smith-Weiss Shepard & Spony, P.C. offers nearly 100 years of combined legal experience.  Our experience and practical advice inside and outside of the courtroom will guide you and allow you to achieve results for all of your legal matters. Our attorneys practice law in the states of New Hampshire and Massachusetts and before the United States District Court for New Hampshire and Massachusetts. 

Call us today at 603-883-1571 for a free initial consultation.

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