In our firm we represent clients in real estate transactions (including performing residential and commercial closings) and we also practice civil litigation. When those two areas of law intersect it can make for interesting legal precedent. One particular area that clients occasionally inquire about is the theory of “adverse possession.” A case decided this month by the Massachusetts Appeals Court highlights some of the intricacies of that theory.

The Case Overview

In Paine v. Sexton, the plaintiffs Robert and Sheila Paine as Trustees (and before them Robert’s parents), had used thirty-six acres in Wellfleet to operate a commercial campground since 1958. Some of the land was woodland. They did not have good record title to the land.

The defendants were the lawful record owners and held fractional interests in the property according to the property records at the Barnstable Registry of Deeds.

The plaintiffs brought a suit in the Land Court to assert good title in their name alone.


The plaintiffs stated that they met each of the criteria for adverse possession, in that they asserted a “non-permissive use of portions of the property for more than twenty years in a manner that was actual, open, notorious, exclusive and, adverse.” (Citing the standard from Kendall V. Selvaggio, 413 Mass. 619 (1992)).

The defendants contended the plaintiffs did not enclose or cultivate portions of the land, and maintained areas between campsites in their natural state, and therefore did not achieve adverse possession.


The Court found several facts that tipped the balance in favor of the plaintiffs. Although it is true that land in a wild or woodland state is generally not considered “occupied” for the purpose of adverse possession, that alone is not controlling. A “more pronounced occupation” with regard to such land can achieve adverse possession.

As such, the Court used a totality of the circumstances test to decide whether or not the occupancy and use of the premises placed the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right. (Citing Sea Pines Condominium II v. Steffens 61 Mass App 838 (2004)).

The facts in favor of the plaintiff included operating and advertising a campground on the land, improvements to the site by clearing campgrounds and constructing roads, toilet buildings, and an office, and restricting access to paying customers. The campground had parking areas, a play area and a wall of railroad ties along the road frontage. They had also constructed partial fencing of iron pipes and wires from which they hung no trespassing signs, although not around the entirety of the campground. The Court found that those facts entitled the plaintiffs to prevail on an adverse possession theory.

A case of adverse possession is fact-specific. If you are concerned about a neighbor attempting to claim adverse possession of your land, or if you consider yourself to have a claim of title under adverse possession, it would be wise to obtain the advice of an attorney to present your case in a light most favorable to you.