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Firm obtains judgment defeating adverse possession claim

Issue:  A commercial condominium unit owner sued the firm’s client for adverse possession seeking to add to its unit, or to otherwise gain independent title to, a portion of the client’s abutting commercial property in Tewksbury, Mass.

Challenge:  The firm was hired within weeks of the scheduled trial date and had to persuade a Massachusetts Superior Court judge that the unit owner’s lawsuit did not satisfy the elements of an adverse possession claim, and that the unit owner lacked standing to pursue the claim. 

Solution:  Following a bench trial, the firm obtained a defense judgment dismissing the adverse possession claim to a portion of the client’s commercial property.  A key part of the evidence showed that the unit owner previously owned the full condominium parcel adjoining the client’s property, but then formed a condominium in 2004 – in the midst of the 20-year adverse possession period – causing the entire property to be transferred under the condominium statute to the condominium, with the unit owner ultimately regaining title to one of the two units and a percentage interest, through the condominium, in the common areas.

The judge ruled that under Massachusetts statutory law only the condominium association had the authority to pursue a claim for adding property to the common areas, not a unit owner.  There was no evidence the other unit owner, a member of the association, assented to the suit, and therefore the association was plainly not the plaintiff in interest.

The plaintiff, the judge ruled, also could not seek to tack on open and notorious acts of possession by the plaintiff or its predecessor in interest as to the disputed parcel from prior to the creation of the condominium in 2004, as any tacking rights were conveyed to the condominium when it was created.

In addition to dismissing the adverse possession claim, the judge entered a judgment confirming that title, use, and occupancy rights in the disputed parcel rest entirely with the firm’s client and that use of the disputed parcel by the plaintiff is/would be a trespass.

Attorneys:  Megan Deluhery and Matt Furman