Jonathan MELO & another 1 v. Antonio VISINHO & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs appeal from a judgment of the Superior Court, which dismissed their claim seeking title by adverse possession or, alternatively, a prescriptive easement in a disputed strip of land, including a paved portion and an unpaved portion, owned of record by the defendants. We agree with the plaintiffs that the judge erroneously concluded that the use by the plaintiffs and their predecessors in interest of the area they claim was permissive, and reverse the judgment in part.4
“A party claiming title to land through adverse possession must establish actual, open, exclusive, and nonpermissive use for a continuous period of twenty years. The guiding principle behind the elements of adverse possession is not to ascertain the intent or state of mind of the adverse claimant, but rather to provide notice to the true owner, allowing for the legal vindication of property rights․ The essence of nonpermissive use is lack of consent from the true owner” (citations omitted). Totman v. Malloy, 431 Mass. 143, 145 (2000). “Whether a use is nonpermissive depends on many circumstances, including the character of the land, who benefited from the use of the land, the way the land was held and maintained, and the nature of the individual relationship between the parties claiming ownership.” Id.
In the present case, as in Totman, supra, the only element of adverse possession addressed by the judge was that of nonpermissive use. The judge rested his conclusion that the use was permissive principally (if not exclusively) on the fact that the record owner of the disputed area was aware of the adverse use, and did not object. However, awareness of the adverse use is a natural (if not necessary, see Lawrence v. Concord, 439 Mass. 416, 422 ) consequence of the open and notorious nature of the use required to satisfy that element of the claim; it does not, in and of itself, imply permission. Indeed, the state of mind of the claimant or the record owner does not determine a claim for adverse possession; a mistaken belief concerning the location of the boundary does not bear on the question. See, e.g., Kendall v. Selvaggio, 413 Mass. 619, 622-623 (1992). Instead, it is the character of the use itself that typically determines whether a claim of adverse possession is met. “[W]here the use of the land is actual, open, and exclusive for a period of twenty years, the nonpermissive use of the land may be inferred.” Totman, 431 Mass. at 146 & n.4. The record includes no evidence of permission granted by the defendants or their predecessors in interest for the paving and use of the portion of the driveway encroaching on the defendants’ land. The judge's conclusion that the use was permissive accordingly finds no support in the evidence and was in error.
Though we conclude that the judge erred in dismissing so much of the plaintiffs’ claim as concerns the paved portion of the disputed area, the judge's findings establish that the plaintiffs and their predecessors did not make sufficient use of the unpaved portion of the disputed area to support their claim. Indeed, the defendants’ predecessor in title planted shrubs diagonally across that area, and later replaced those shrubs with a fence.5 The judgment accordingly is correct insofar as it rejects the plaintiffs’ claim as to the unpaved portion of the disputed area.
So much of the judgment as pertains to the paved portion of the disputed area is reversed, and the judgment shall be modified to declare that the plaintiffs hold title by adverse possession of the paved portion of the disputed area. As so modified, the judgment is affirmed. The case is remanded for such further proceedings as are necessary, consistent with this memorandum and order.6
Reversed in part; affirmed as modified in part; and remanded in part.
4. Though we agree that the judge erroneously concluded that the use of the disputed area was permissive, the record concerning the extent and location of that use is inadequate to support the plaintiffs’ claim as to the entirety of the disputed area.
5. That the location of the shrubs and fence did not enclose the entirety of the disputed area and, accordingly, may have reflected a belief that the line of the shrubs and fence marked the boundary between the two properties, is of no moment. See Kendall, 413 Mass. at 622-623. The judge's findings describe no particular use of any kind of the unpaved area by the plaintiffs, much less use of the notorious and hostile character required to support a claim of adverse possession.
6. To establish and clarify the boundaries of the area acquired by adverse possession, the judgment should include a metes and bounds description or a plan submitted by the parties, and the judgment thereafter should be recorded in the appropriate registry of deeds. We leave the precise contours of any proceedings to achieve that objective, as well as the need for other injunctive or equitable relief concerning removal of the fence erected by the defendants within a portion of the paved driveway, to the sound discretion of the Superior Court judge.
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