Dorchester

A Boston homeowner won a land case through an obscure doctrine. What’s ‘adverse possession?’

In Massachusetts, someone needs to prove exclusive and continuous possession of land over a period of at least 20 years to make this claim.

A neighborhood densely packed with homes
What’s the history behind adverse possession? What’s it meant to accomplish? And, what does it take to make a claim? Sophie Park/NYT

By Victor Stefanescu

3 minutes to read

Through “adverse possession,” an obscure legal doctrine, an architect claimed the rights to 103.2 acres of Cape Cod woodlands in the 1970s, The New York Times reported. And more recently, a Dorchester homeowner used it to prove that 4,000 square feet of vacant land was hers after years of maintaining it and a developer tried to buy it, Boston.com reported.

Adverse possession allows “a person to claim a property right in land owned by another,” a Trial Court Law Libraries webpage reads. In Massachusetts, someone needs to prove an “actual, open, exclusive, and adverse possession of the land” over a period of at least 20 years, according to an 1853 ruling. 

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For the Dorchester homeowner, Carla B. Monteiro, this meant documenting her continuous time occupying the property — abandoned and left vacant after a 1970s fire — after a developer bought the lot from the city.

“In Carla’s case,” said her attorney, Morjieta Derisier of BayState Law Group, “she had pictures of barbecues, she mowed the grass, she had records of this, she had landscapers come out.” 

Richard Vetstein, a real estate attorney and founding partner at Vetstein Law Group, said he probably has five to 10 active adverse possession cases currently. He said disputes over things like driveway boundaries and property lines most often occur at older properties that haven’t recently been surveyed. 

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“Even lawyers are like, ‘You know, I haven’t heard of adverse possession since law school,’” Vetstein said. “But it’s definitely alive and well.” 

What’s the history behind adverse possession? What’s it meant to accomplish? And what does it take to make a claim?

‘Antithetical to our entire system of property rights’

Vetstein said he thinks since Massachusetts is an older state, the doctrine is a common law principle that carried over from feudal times. 

Sheryl R. Furnari, another BayState attorney who represented Monteiro, said land passed down from family to family in old England, much of it unused, which triggered adverse possession claims. In Boston, she said, people may not even realize they could make a claim.

More on Property issues and disputes

“It dates back to gang violence in the ’60s and ’70s, when properties were abandoned and families left lots after houses burned down,” Furnari said. “The city then inherited a lot of property.”

The doctrine recognizes productive land use and punishes landowners who “sleep on their rights,” the state said on the Trail Courts Law Libraries webpage. 

“So the public policy is that if you will leave your land untouched for 20-plus years,” Furnari said, “or let’s say you inherited land and didn’t even know it, but I’m making good use of it so that it’s not a breeding ground for, you know, all sorts of things that can be negative in a neighborhood, then I deserve the land because I’ve been the one taking care of it for 20 years.” 

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Some think the doctrine is unfair for landowners, Vetstein said, while others would like to see further legislation regulating it. A party can make the claim in New Jersey only after 30 years, while people can assert adverse possession in Arizona after just three years if they pay taxes and get their name on the deed, according to the legal solutions website NOLO. 

Vetstein said people making adverse possession claims in court succeed only at a rate of probably 10% to 15%.

“The end result is that the law is taking ownership of land from one party to the other, and that’s pretty much antithetical to our entire system of property rights,” Vetstein said.

🤔 What does a claim take? 

A successful adverse possession claim requires lots of evidence, attorneys fees, and a “full-blown trial in superior court or land court,” Vetstein said. Five days of trial could cost a client more than $50,000 in legal fees. Monteiro paid more than $20,000 protecting her property rights, Boston.com reported.

“It’s kind of nuts,” Vetstein said, “given usually the value of the land that’s in dispute is … less than the legal fees. That’s why I always try to tell my clients to settle these cases.”

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But, Vetstein said, some disputes escalate to “people yelling and screaming at each other, shouting insults, getting close to actual physical fighting.” 

He recommended that home buyers get a plot plan from their lenders, which can cost around $150. This would likely flag any encroachment. 

To prove an adversarial possession claim, parties have to provide testimony that proves they were physically and continuously occupying a property, aside from just sending in photos, Furnari said.

For Monteiro, that meant providing a permit from the 1970s that allowed a previous owner to build a fence on the land, Furnari said. 

“If you know, for instance, that it’s not your land, then you probably need to make strong improvements,” Furnari said, “whether it’s a new fence, permanent basketball court, or a new shed.”

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