Land provides its owners with many wonderful benefits, including beautiful scenery, privacy, and recreational opportunities.
Land can also bring with it legal concerns for some owners. Below is a general explanation of a few laws that landowners may have questions about as circumstances in their ownership arise. For answers to your specific questions and circumstances, it is recommended that you contact a lawyer with experience working with laws that apply to land ownership.
Landowners sometimes worry that if they let people use their land (e.g., hiking, snowmobiling, hunting), that they may be held liable if someone gets hurt on the property.
Landowners who allow public use of their land without charging fees and who have not been willful, wanton or reckless are given certain protections from liability for injuries under Chapter 21, Section 17C of Massachusetts General Law.
Landowners who charge fees to enter onto their land or who have been willful, wanton or reckless in the upkeep of their land, such as creating hazards that are likely to cause serious, grieveious injuries or death are not protected from liability under Chapter 21 section 17C.
For more information and details visit: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter21/Section17C
Our woods are criss-crossed with stonewalls and barbed wire from a time when our land was used as pasture. As land was sold into smaller parcels, the boundaries became less obvious.
It is therefore not uncommon for landowners to be unsure of the exact location of their boundaries or for neighbors to disagree on boundary lines. It is also possible that a person may knowingly cross a boundary line to harvest a high value tree. The timber trespass laws address these types of situations.
The law states that someone who removes or destroys trees on another’s land knowingly without permission will be responsible to the owner for three-times the value of trees destroyed. If the person who removed or destroyed the trees had good reason to believe the land was theirs or that they were otherwise lawfully authorized to destroy them, will only be responsible for the single value of the trees destroyed. For more information: https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleIII/Chapter242/Section7.
Typically a forester or arborist is hired to estimate the value of the trees that have been removed or destroyed. A judge then makes a decision if an award is justified and, if so, the value of the award.
To minimize the risk of timber trespass, it is recommended that landowners clearly mark their boundary lines. It would be wise to invite the neighbor to come along so that there can be a mutual understanding or agreement as to the location of the boundaries, and which could also provide a defense if the neighbor later asserted that the boundary was incorrectly marked and that the trees that were cut were on the neighbor’s property.
For more information and details visit: https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleIII/Chapter242/Section7
Some landowners have concerns that if they let people use their land that the people using the land may eventually be able to claim that they own the land through adverse possession.
Adverse Possession is a legal claim used to gain full ownership of a piece of land. The claim of adverse possession arises when one person is the title owner of the land based on a deed and another person possesses the land, generally by occupying it or using it openly in a manner adverse to the true owner, and without recognizing the rights of the true owner. In the case of forests, fencing, enclosing, or “working” the land is an additional requirement. Adverse possession is typically very hard to prove since all of the following criteria are needed before adverse possession is legally granted:
- Actual possession – the person claiming adverse possession must have occupied the land or at least some part of it.
- Open possession – the possessor’s occupation has been open and obvious, such that the public and the true owner would notice (actual notice is not required).
- Adverse (hostile) possession – the possession of the land is wrongful by the occupier.
- Exclusive Possession – the possessor has deprived the owner of possession and occupancy, or acts in a manner that does not recognize the owner’s rights.
- Continuous Possession – that there has been an uninterrupted occupation of twenty years by the possessor.
Permission destroys the adverse or hostile nature of the possession. If the owner gives permission to the person using the land, it will not be adverse. Permission is best shown by a written document signed by both parties. If the use begins with permission, but goes beyond the permission period, or if the use goes beyond what was allowed – either beyond the time, beyond the area, or the use is different than what the owner gave permission for, it could be determined to be adverse and ripen into adverse possession.
For more information and details visit: http://casaly.com/articles/06_adverse_possession.html
Some landowners have concerns that if they let people cross their land (e.g., recreational trail), that the people using the land may eventually be able to claim that they own an easement across land through prescription.
- Actual use – the person claiming a prescriptive easement must have useed the land or at least some part of it.
- Open possession – the use must be open and obvious, such that the public and the true owner would notice (actual notice is not required).
- Adverse (hostile) use – the possession of the land is wrongful by the occupier.
- Use need not be exclusive – the user need not exclude the owner – both the user and the owner may, for instance, use a road that traverses the land.
- The user does not recognize the owner’s rights to stop the use.
- Continuous Use – that there has been an uninterrupted use of twenty years, in a manner consistent with the use that would be made by an owner. For instance, if the road is not used in the winter because it is not plowed, that would not prevent the acquisition of a prescriptive easement.
As stated above, permission destroys the adverse or hostile nature of prescription. Because owners of property are not always aware of who is using their property (usually walking on trails or using the dirt roads), it may not be possible to give written permission. An owner can post signs (take photos of the signs and keep a record of when and where they are posted), telling the public that the owner allows the public to use the property (in a respectful manner, for instance).
A notice can also be posted by a Sheriff on the property, and recorded in the Registry of Deeds, that will prevent the acquisition of a prescriptive easement.