Boundary 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:
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:
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 Kanakis & Spony, P.C. can assist you with a resolution.