Daily Development for Wednesday, February 5, 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
prandolph@cctr.umkc.edu

ADVERSE POSSESSION; REQUIREMENT OF OPEN AND NOTORIOUS POSSESSION; TRUE OWNER'S KNOWLEDGE OF INTEREST: Adverse claimant's use of property willed to town as a contingent remainder was not "open or notorious" where town did not know that the contingency had occurred town did not know and could not reasonably have known of its interest.

Lawrence v. Town of Concord, 775 N.E.2d 448 (Mass.App.Ct. 12/05/2002).

In August, 1941, Mary J. Burke, the record owner certain property, willed the property to her daughter, and upon her daughter's death, the property would pass to her granddaughter, Harriet Burke Frazier. If Harriet died with no surviving children, the will directed the property should go to the town. In May of 1965, Harriet died childless, survived only by her husband, Joseph Frazier ("Frazier").

The town was unaware that the contingent devise from Mary Burke had ripened into ownership. None of the probate records at the time of the original probate of the will showed the interest, nor were they required to do so. After Harriet's death Frazier treated the property as his own and continued to pay taxes on the property. Frazier's will devised "all [his] right, title and interest" in the property to Albert J. Lawrence ("Lawrence"). In April of 1997, the town first learned of its interest in the property when counsel for Frazier's estate advised the town's legal counsel of its potential interest and of Frazier's adverse possession claim.

By this time, of course, the property had been possessed by persons without title for 35 years.

In June of 1998, the town seized the property by eminent domain for municipal purposes in order to quiet title. As the putative owner of the property, the town did not compensate Lawrence for the taking and Lawrence brought suit against the town. A Superior Court judge granted summary judgment to the town holding that title to the property was held by the town through a specific devise and not by Lawrence through Frazier's claimed adverse possession.

The Appeals Court of Massachusetts, Middlesex (the "Court") affirmed the Superior Court's grant of summary judgment to the town concluding that Frazier had not acquired title by adverse possession to the property because his possession was not "open and notorious." The Court reasoned that the town neither knew, nor reasonably could have known, of its interest in the property. Although Frazier did not try to conceal that he was using the property, his use was not open because the town, as the true owner, did not know of its ownership interest or that the nature of Frazier's use became adverse to the town's ownership when Harriet died.

Frazier's use was not notorious because neither his conduct nor use alerted the town, or any other party, to the town's interest. The Court further explained that there is a difference between knowing whether one has been dispossessed of land and knowing whether one has any interest in land. The purpose of the requirements of adverse possession, that the non-permissive use of another be actual, open, notorious, exclusive and adverse, is to put the true owner on notice of the hostile activity of the possessor, so the true owner may take steps to vindicate his rights by legal action, citing Ottavia v. Saverese, 338 Mass. 300, 333, 155 N.E.2d 432 (1959). Since the town, as the true owner, did not know it had property rights to protect, the purpose of the requirements of adverse possession are rendered irrelevant.

The Court concluded that it would be a "perversion" of adverse possession and Mary Burke's testamentary wishes to permit Frazier to circumvent the specific devise in Burke's will and make himself the residuary devisee.

Comment 1: Speaking of "perversions" imagine how this interpretation of adverse possession law is going to play out in the standard "boundary dispute" situation. The fact is that the "true owner" of the property almost never knows that the adverse claimant is occupying the owner's property. And the use, since it is theoretically on the neighbor's own property, doesn't alert anyone of anything. The court would differentiate this situation because the "true owner" knows or should know that it has an interest in property. But when we get down to "should know," are we really going to evaluate all the circumstances as to whether the occupancy was really of property that the true owner should have known that it owned? What if there was an erroneous survey? Will that render all subsequent adverse possession void.

A second common use of adverse possession doctrine is to dispose of old claims of unknown heirs or similar claimants who arrive on the scene long after the fact. Again, in many cases, those parties have no knowledge that they even had a claim until long after the statute has run. Do we really want people to be able to allege ignorance of ownership as a defense to adverse possession.

The editor recommends that the title insurance industry in Massachusetts get this issue clarified asap. Ignorance of ownership is not an excuse, and shouldn't be. If the court simply wanted to say "city wins," it could have done that in some other way without destroying three hundred years of carefully developed precedent. Note that the case is only two months old. Has the time for appeal run?

Comment 2: The court's citation of Ottavia v. Savarese in support of its conclusion is absurd. Ottavia was a suit involving the contstruction of a building in an airshaft adjacent to the plaintiff's building, which apparently extended to the lot line. The adverse possessor inserted certain support beams into the plaintiff's wall, hidden from view and without plaintiff's knowledge, and those beams remained for the adverse period. The court found that a prescriptive easement had arisen in these beams, because the occupation was "open and notorious" although the plaintiff had no knowledge of it. It noted that the fact that the building was there and adjacent to plaintiff's own building was apparent, and that therefore plaintiff should have known that some intrusion to her building must have occurred.

But additional work undertaken more recently, still short of the adverse possession period, was required to be removed.

Comment 3: The fact of the matter is that modern adverse possession law is not based upon the notion that the true owner was negligent and should be punished for not looking after his property, but rather than the adverse possessor is being treated by the community as the owner for a substantial period of time, and there is no real reason to alter that set of facts. Inquiry into the question of whether the adverse possessor had "larcenous intent" has proven to be impractical and has been abandoned. The fact is that people rarely actually steal land that isn't theirs. Although it is possible that that would have happened here if the husband had known what the will provided. (Note, however, that the court's outcome would be the same regardless of what the husband believed. The court focuses entirely upon the knowledge of the "true owner.")