On August 29, 2019, the Appeals Court issued two decisions, Miller v. Abramson, Appeals Court No. 18-P-514 (Aug. 29, 2019) and Mancini v Spagtacular, LLC, Appeals Court No. 18-P-593 (Aug. 29, 2019), each finding that ownership by adverse possession can be established on residential property by activities as limited as mowing and pursuing other landscaping and yard maintenance tasks typical of homeowners of similar properties.
Adverse possession is a doctrine that allows a party to acquire legal ownership of property of another by essentially acting as the owner for a twenty year period. Specifically, “[t]itle by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years. Acts of possession which are ‘few, intermittent and equivocal’ do not constitute adverse possession.” Miller, Slip op. at 6. (internal quotations and citations omitted).
The Miller and Mancini decisions were similar insofar as both involved residential properties in which vegetation and other natural features clearly demarcated the extent of the land claimed by adverse possession. Further, in each case, there was some maintenance or activity on the claimed area by the party claiming the property by adverse possession and no apparent use or activity in the relevant twenty year period by the record owner.
Miller involved two adjacent residential properties in a suburban setting. The disputed property was a triangular area at the side and rear of both lots. The extent of the claimed area was demarcated by what the court called a “natural boundary”, a line of shrubs and small trees that served for many years as the de facto property line, cutting off direct access to the area by the Abramsons, the record owner. The only real use the Millers made of the property they were claiming by adverse possession was as a portion of their lawn, which their landscaping company continued to fertilize, mow and maintain for more than twenty years. The court held that the vegetative boundary was sufficient to put the Abramsons on notice of the area that the Millers were using as their own. Further, the court found that the relatively passive use of the property as a portion of the Millers’ lawn and “typical suburban lawn care” activities were “precisely as the average owner of similar property would use it in a suburban neighborhood populated with single family homes” and, thus, sufficient to support a claim of adverse possession.
Mancini involved a residential lot owned by Mancini, the party claiming adverse possession of two portions of the bordering Spagtacular property, a largely undeveloped, wooded lot, the far side of which was used for commercial activity. The two disputed areas once again were clearly demarcated by a tree line, which constituted the edge of the lawn area on the Mancini (claimant) side and the beginning of the wooded area on the Spagtacular (record owner) side. The Mancini family continuously mowed and maintained the lawn areas of the claimed property, initially, through the activities of their sons, and, after the sons grew up and moved away, through the services of a lawn care company Mrs. Mancini hired and used until she died, and then, which the sons retained thereafter. In one of the disputed areas, the Mancinis built a basketball court which the Mancini sons used regularly as children and relatively irregularly when visiting their aging mother in later years.
Spagtacular sought to defend the adverse possession claim in part by noting that the site was largely undeveloped and densely wooded, at least at the Mancini end. Based on this, Spagtacular sought to rely on cases involving “wilds and woodlands”, which applied a stricter adverse possession standard, requiring that land would have to have been “enclosed or reduced to cultivation” in order to put the record owner on notice of the adverse claimant’s hostile use. The court rejected this argument, noting that the property was located in an area that “is not remote, isolated or rural in nature”, but, rather, in a well-developed neighborhood that, at one end, is typically suburban and, at the other end, is commercial. The court also noted that, in view of the clear tree line, the basketball court and the lawn maintenance activities, Spagtacular was clearly on notice that the disputed areas had essentially been incorporated into the Mancini house lot.
The court also rejected arguments that the Mancinis’ relatively limited use of the basketball court and lawn areas of the property once Mrs. Mancini became elderly cut off the continuous use period, noting that
- [i]n the normal course of family life, a residential back or side yard may be used intensively in years when young, active children live on the property, but much more passively when the inhabitants are older, less mobile, or infirm. Accordingly, the relevant question in this context is not whether the use of land is equally intense for the entire twenty-year period, but whether the possessor has maintained dominion and control for that same amount of time.
In sum, a determination of whether the use of property is sufficient to support a claim of adverse possession is context- and fact-specific. However, courts will look at these issues practically and with an eye to parties’ reasonable expectations. Thus, in a residential setting, if the adverse use is similar to that of a typical property owner in the area for a twenty year period, the use likely will be sufficient to support a claim of ownership by adverse possession.