Legal Question in Real Estate Law in Massachusetts

Re: adverse possession

An easement can be created by adverse possession (called easement by

prescription). Permissive use is a defense to an easement by prescription. However,

you must prove the permission. Permissive use should be documented by letters or

other documents to prove to a court that there was no prescriptive use. Since the

trial will occur over twenty years after the permission is granted, witnesses may be

difficult to locate. In your case, the key may be the testimony of the prior owners.

Re: adverse possession

You must establish a timeline of when your neighbor first began using the path, and if there was an owner before your previous owner, how each owner going back in time was treated. You need to collect all of the correspondence that documents how this arrangement was to operate. If you had conversations, you need to document when those conversations took place, who was there, and what was said. Then you need to see an attorney, armed with this collection of information.

I practice in the Wareham District Court several times a week. I will be trying a case there tomorrow. This is a Court that will render a fair decision, based on the law. If you go without an attorney, your story may not be heard in a way that is to your advantage. I would highly recommend you retain an attorney to represent you in the matter. Collecting the information, along with a timeline of when things happened, will help an attorney analyze the facts and tell you what a Court is likely to do.