Daily Development for Thursday, September 21, 2006
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; ESTOPPEL OF ADVERSE CLAIM:  Adverse possessor claimant may be estopped from pursuing claim when the claimant  served as attorney for previous seller of property being claimed and made assertions to a title insurer company that there was no claim against the land. 

Moran v. Gala, 845 N.E.2d 1170 (Mass. App. Ct. 2006). 

Moran and his wife Susan brought this appeal of a grant of summary judgment ordered in favor of defendant Galas.  The Galas’ title to the property currently includes the area in dispute.  Moran’s parents lived on the property adjacent to that of the Galas from 1942 through 1993.  Upon his parents’ death, Moran bought out the interests of his siblings and moved into the residence Moran filed an affidavit  that he or his predecessors openly, notoriously, exclusively, adversely, and continuously occupied the land being claimed, a parcel between the two residences upon which the Galas built a driveway, for a period exceeding 20 years.

The Galas purchased their lot (neighboring Moran), including the land in question, from the Stowe Familyin 1997.  Moran, a family friend of the Stowes and a lawyer, represented the Stowes in their sale of the property to the Galas.  In the course of his representation, Moran filed a Mechanic’s Lien Certificate on behalf of the Gala’s with the title insurance company averring that there were no “unrecorded matters” connected to the title.  In that certificate, Moran neither asserted no claim of adverse possession against the Stowes. 

During the course of the negotiations, Moran attempted to arrange for changes in the boundary, but the parties rejected his proposal.  Further, Moran made no attempt to assert changed boundaries of his property when he applied for a special permit to build on his property in 1994.

 The Court of Appeals affirmed the trial court’s granting of summary judgment in favor of the Galas. The Court found that equitable estoppel barred Moran from bringing his claim in this case as a matter of law.  “Circumstances that give rise to an estoppel are (1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission.” 

The Court found that Moran’s assertions to the title company, although not directly to the Galas, induced the Galas to purchase the land in question by allowing the title insurance company to issue the policy. 

In response, Moran argued that, although he was an attorney, he was not a property specialist and knew virtually nothing about the law of adverse possession.  He was aware of the overlap, but did not know that adverse possession might supply a solution to the issue.  He did not take action until after the sale by the Stowes and the death of his own parents because of the long

The court stated that Moran’s explanation did not avail and that his filing of the affidavit to the title company was material to the conclusion that he was estopped from asserting his adverse possession claim.  A  misrepresentation did not have to rise to the level of fraud to qualify under the doctrine of equitable estoppel, rather the proper test is whether “conscience and duty of honest dealings should deny one the right to repudiate the consequences of his representations or conduct.” 

Further, in the course of the negotiations on behalf of the Stowes, Moran had proposed an adjustment to the boundaries of the properties.  The court found these to be  an implicit representation that he was not asserting a claim contrary to the documents that he was preparing in conjunction with the sale.  Finally, in applying for a zoning variance, Moran had filed papers asserting his present boundaries as his owned property, without disclosing his claim of ownership of the property next door, although he apparently was aware of the fact that he did have an adverse possession claim. 

The Court ruled that Moran’s wife was similarly barred from bringing a claim of adverse possession, despite the fact that she was co-owner of their property, because she effectively allowed Moran to act as her agent when she allowed him to sign solely all sign all paperwork in connection with the property.  The Galas retained title to the land in dispute.

Comment 1: The editor thinks this to be a much closer case than the court.  His clients, the Stowes, were not aware of the adverse possession facts, and if he had disclosed them on the Stowes behalf in the affidavit he likely would have “queered the deal” for them.  The affidavit was the Stowes representation, not his.

As to the negotiation concerning the boundaries, the cases are full of statements that negotiations to clear a boundary dispute do not detract from a later claim that adverse possession has arisen from continued occupation over the boundary. 

The zoning matter, in the editor’s view, has virtually nothing to do with the case at all, since it was addressed to the technical issues concerning the zoning agency and not to the neighbors.  It did not constitute any abandonment of Moran’s physical occupation of the Galas’ land, which remained, open, notorious, unpermitted and, by the ruling of most courts - hostile.

Comment 2: Was there anything about Moran’s ethical duties as an attorney?  To avoid misleading the other side, should Moran have simply pushed the affidavit back to the Stowes for them to sign themselves?  Remember that at the time he did not have a direct plan to seek an adverse possession claim and admitted only to a “general knowledge” of the doctrine. 

Comment 3: Would the issue be any different if Moran had served as a broker, rather than a lawyer?  How far do we go with this?  Does any professional who represents others in real estate transactions have a duty to disclose any adverse claims he may have at some future time to both parties - even non-clients?  The editor understands the court’s feelings here, but he thinks the court has leapt onto a slippery slope that it might better have avoided. 

Comment 4: Note that this is claim to establish ownership by adverse possession - sounding in law, not equity. But the court uses an equitable defense - estoppel - to bar the claim.  This is probably the modern approach, but the editor has noted other cases in which the court has concluded that an equitable defense should not avail as against a legal claim. 

Readers are encouraged to respond to or criticize this posting.

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