Property Law Developments—Joseph William Singer

The Supreme Judicial Court of the Commonwealth of Massachusetts has reaffirmed that even longstanding non-use of an easement will not extinguish it or cause it to lapse because of prescription. Cater v. Bednarek, — N.E.2d —, 462 Mass. 523 (Mass. 2012). To extinguish an easement by prescription requires acts inconsistent with the easement that put the easement owner on notice that its uses are being disrupted. Moreover, if the servient estate owner makes only part of an easement inaccessible, it is extinguished only as to that part but not the rest. In addition, the court held that, where a deed does not specify the dimensions of the easement, it must be interpreted to establish dimensions that are reasonably necessary for the enjoyment of the dominant estate; the easement is not limited to the purposes for which the dominant estate was used at the time the easement was created. Moreover, if the easement is for access to a public road, it must be interpreted to be wide enough to comply with applicable local regulations on minimum width of roads. Compare the result in this case to the ruling in Cox v. Glenbrook Co., 371 P.2d 647 (Nev. 1962), which interpreted an easement to be limited to one lane when that was the physical layout of the road at the time the easement was created even though such an easement was insufficient as an access road to the dominant estate which consisted of 80 acres.

The Massachusetts Land Court has reaffirmed the longstanding rule that occupation of property is sufficient to  make it “adverse” or nonpermissive. Kissinger v. Frankelton, MISC 10-420652 (Mass. Land Ct. Mar. 8, 2012). Adverse possessors need not know they are occupying land of another or intend to wrest it from the control of others. Such a requirement would reward land pirates and deny protection to longstanding good faith possessors. While this rule is long established and sensible, it is remarkable how many cases revisit it, perhaps because some lawyers did not pay attention in law school and continue to argue that “adverse” possession depends on the adverse possessor’s knowledge of intrusion onto the property of another and intent to take it.

The Supreme Judicial Court of Maine has created an exception to the presumption that prescriptive use of another’s property is non-permissive when the servient estate is owned by a family member. Androkites v. White, 10 A.3d 677 (Me. 2010). The court held that, in such cases, it is more likely that the use is permissive and thus the usual presumption is overcome. A few states presume use to be permissive in all cases while most states retain the same presumption of nonpermissiveness for both adverse possession claims and prescriptive easement claims.

New York substantially changed its adverse possession law in 2008, effectively abolishing adverse possession in most border dispute cases. The law allows an adverse possessor to acquire property by building a permanent structure that encroaches on land owned by another but denies adverse possession by deeming “permissive and non-adverse” what the statute calls “de minimums non-structural encroachments” such as lawn mowing, plantings, fences and sheds. N.Y. Real Prop. Acts §543.