Sunday, July 28, 2013

My neighbor has a vegetable garden on my land. How do I stop adverse possession without upsetting my neighbor?

Adverse possession is a way to establish title to real estate even though there is no deed to the property. A simple explanation is that the person has owned the property but can't locate the proper documents to establish title. So it does not allow the stealing of property as adverse possession requires some claim of title or right of ownership. Typically, the next door neighbor claims the property as annexed to their own. The use by the neighbor could be as simple as growing vegetables every year.

The elements of Adverse possession in Massachusetts are: Possession which is open and notorious, adverse to the interest of other owners, continuous for a period of 20 years or more and hostile to the interest of other owners. Possession means that the person claiming ownership entered and possessed the property. Adverse means that the possession was without the owners consent. Open means that the possession must be done in such a way that the owner should be aware and exclusive. In other words, not in secret and not used by the real owner. Mowing the lawn is generally not done in a way that excludes the owner from using the property. A vegetable garden can be exclusive. The use must also be hostile which means without the permission of the owner.

If there is a possibility of a claim of adverse possession, then it is a good idea to take steps to prevent the claim. However, you don't want to alienate the neighbor because then you won't get the free vegetables. There are several things you can do if a neighbor is using your land. The choices depend on your current relationship with the neighbor and the future relationship. You can hire a surveyor to place markers to define the boundary. You can post no trespassing signs on the property and send a letter to the neighbor. If the neighbor continues to use the property, you may have to sue him for trespass.

Since one of the elements of adverse possession is that the possession is hostile, then adverse possession can be stopped by giving permission before 20 years of usage has occurred. Permission may be verbal or a note delivered to the neighbor. However both of these can be issues at a trial if the neighbor forgets about the permission or lies. A better choice is to grant permission in a way that it can't be disputed at trial.

My preference is to record a license at the Registry of Deeds. Once a document is recorded at the Registry it is considered notice to the world and can't be disputed. If the permission is in a document recorded at the Registry then there won't be any factual contest at trial. There will be no dispute about what was said. A license is permission to use the property and is revocable at will.

If your neighbor is using a portion of your property you should consult a real estate attorney about granting a license and protecting against a claim of adverse possession in the future.

Sunday, July 14, 2013

If you live together you need a cohabitation agreement

Every relationship ends at some time. When a couple lives together, sooner or later, they will stop living together. Sometimes they separate because one person moves out. Sometimes, the relationship ends because one person dies. No matter what reason causes the end of the relationship, Massachusetts does not recognize any rights for a couple who cohabit without marriage. This means that no property division of separately owned property. No palimony (or alimony). No rights if your partner is hospitalized. If one person in the relationship sacrifices employment to maintain the home or to care for children, there is no compensation for the lost earning capacity. If one partner dies, there is no right to inherit from the estate. Massachusetts does not allow common law marriage so no matter how long a couple live together, cohabitation won't ever change into a marriage without performing a wedding ceremony.

Historically, some people who separate after long periods of cohabitation have tried to obtain property rights or support by litigation. While palimony is not recognized in Massachusetts, there are some legal theories that may give some limited benefits in this situation. These theories can result in some property rights but only in very limited factual circumstances and only after expensive litigation. A well drafted cohabitation agreement should prevent such litigation.

While the Commonwealth of Massachusetts won't create protections for cohabitants, the parties can create their own protections by executing legal documents such as a cohabitation agreement and an estate plan. Just as a couple who are going to get married can create a pre-nuptial agreement, a couple who live together can create a cohabitation agreement. A well drafted cohabitation agreement will explain rights and responsibilities for termination of the relationship including termination by death. It should explain how finances will be managed if the couple remains healthy and employed and if one party becomes incapacitated or unemployed. The agreement should address usage of real property and rights in the property if one party dies. This is particularly important if the couple purchase real estate together. The agreement can address personal property and debt division. The agreement can address protections for children of other relationships or children of the cohabitating couple. It can provide inheritance rights.

A cohabitation agreement should be drafted in conjunction with a will, a health care proxy, and a power of attorney. Drafting of these agreements should be done by an experienced family law attorney working with an experienced estate planning attorney. These attorneys should be able to discuss the financial differences between marriage and cohabitation and the limits on protections that a cohabitation agreement and estate plan can provide. Even with a well drafted agreement and estate plan, there will always be differences between marriage and cohabitation. While a couple should not get married because of the lack of protection afforded cohabitants, it is important that they understand the differences.