Daily Development for Tuesday, May 20, 2003
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
ADVERSE POSSESSION; REQUIREMENT OF HOSTILITY;
KNOWLEDGE OF TRUE OWNER: Bad apple extracted -
Massachusetts court reverses appeals court opinion and affirms rule that
true owner need not have knowledge that adversely possessed land
belongs to it in order for the possession to be hostile to the true owner's
Lawrence v. Town of Concord, SJC-08920 (Mass. 5/19/03)
One wouldn't have thought this holding to be noteworthy, as it states the
existing legal rule, but the case became critically important when the trial
court and the Massachusetts intermediate court of appeals both ruled that
when the true owner is unaware that it owns property possessed by an
adverse possessor, there can be no hostility. 775 N.E.2d 448
(Mass.App.Ct. 12/05/2002). This holding fundamentally undermined the
function of adverse possession as a devise to cure disputed title in favor
of the long established status quo and threatened to do great injury to the
fabric of property law. The editor excoriated it in the DD of 2/5/03.)
It is noteworthy that the Massachusetts Supreme Court wasted no time in
getting this case reversed. Six months to take up an appeal and release
an opinion is lightning fast for most appeals courts. This opinion
expands a bit upon the facts set forth below. A life estate in the property
had been willed in 1942 to the granddaughter of the testator following a
life estate in testator's daughter. If the granddaughter died without
children, the property was to pass to the Town of Concord. The
granddaughter did die without children, in 1965, but was married at her
death, and her husband remained in possession of the property.
The husband was quite aware that he had no legal claim to the property,
and lived in fear of the Town's waking up and discovering that its
interest had "ripened." But he either lived on the property or rented it out
for the next thirty odd years, and when he died he devised the property to
Lawrence, the claimant in the instant case. Lawrence's lawyer notified
the Town of his client's claims (presumably in order to clear title for
sale.) The Town thereafter desired to assert a claim to the property, and
sought to condemn it, but argued that it owed no compensation to
Lawrence since it really already owned the property.
The Massachusetts Supreme Court upheld Lawrence's title and
remanded for awarding of condemnation damages. It concluded that the
fact that the Town had been unable to "defend its title" since it lacked
any knowledge that it had such a title was of no consequence.
"[W]e reject the argument that the owner must have knowledge
of its interest for the same reason that we have rejected a
requirement of actual knowledge of the adverse use. It 'would
deprive the principle of [adverse possession] of much of its value
in quiety controversy and giving sanction to long continued
usages.' 'Long dormant claims to title could rise from the dust
bin of history and many title would become unsettled.'" (citations
Comment 1: Whew!! Had the Massachusetts Supreme Court not
appreciated the significance of this decision, there definitely would have
been a serious problem in adverse possession theory, at least in that state.
In many boundary disputes the "true owner" in fact is unaware that the
property that his neighbor is possessing in fact belongs to him. Often the
true owner's ignorance is based upon good faith reliance on erroneous
surveys, or upon other understandable and forgivable issues. The focus
should not be upon whether adverse possession should punish an owner
for being inattentive, but upon whether a long continued nonpermissive
possession ought to be treated as the equivalent of ownership.
Comment 2: It might be noted that the statutory exceptions to adverse possession based upon infancy or insanity do articulate policies similar to that underlying the intermediate appeals court's decision. "True owners" who are incapacitated are "forgiven" for not pursuing their rights against adverse claimants. Whether or not this exception for incapacitated owners is a wise policy, it applies so rarely that it can be tolerated without doing great damage to the benefits of the adverse possession doctrine generally.
Comment 3: The decision ought to be considered in connection with recent discussion on DIRT concerning the assertion, made some time ago by Professor Helmholz, that adverse possession cases never benefit wilfull adverse claimants. As the court's analysis indicates here, the husband of the deceased life tenant was very much aware that he occupied the City's property, and he not only continued to occupy it wilfully for 30 years, he even devised it when he passed away.
Readers are encouraged to respond to or criticize this posting.
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