788 N.E.2d 546 (Mass. 2003)
The town of Concord became aware as late as 1997 that it had received a specific devise of land located at 1586 Main Street in Concord under a will that was probated in 1942.1 Albert J. Lawrence claimed title to the same land through a specific devise from Joseph Frazier, whom Lawrence asserts perfected title through adverse possession.2 The town's response was to exercise its power of eminent domain as to the land but pay Lawrence no damages.3 Lawrence brought an action for damages under G. L. c. 79, § 14.4
In a properly executed and witnessed holographic will dated August 27, 1941, Mary J. Burke left the locus to her daughter Helen E. Burke Boyer never to be sold, then to her adopted daughter Harriet Burke Frazier, and if no children survived Harriet to the town of Concord.5 Mary J. Burke died on August 4, 1942, and her will was allowed on September 14, 1942.6 On November 30, 1964, Helen E. Burke Boyer conveyed her life interest in the locus to Harriet Burke Frazier by a deed with quitclaim covenants.7 Harriet Burke Frazier had married Joseph Frazier on December 5, 1937, and died on May 18, 1965, survived by Joseph Frazier but without issue.8
Subsequent to his wife's death, Joseph Frazier rented the locus for a period of years while he lived at another site in Concord.9 The first rental shown in the record was to Michael DiPietro, evidenced by a summary process action brought by Frazier against DiPietro that resulted in a writ of possession and execution delivered to Frazier on May 17, 1968.10 Margaret and Raymond Domig lived at the locus between 1969 and 1973.11 From at least 1969 until his death in 1996, Joseph Frazier received and paid all of the real estate tax bills on the locus.12 The annual street lists of the town showed that Joseph Frazier lived at the locus from January 1, 1974, until he died on December 24, 1996.13
Uncontradicted affidavits filed in support of Lawrence's motion for summary judgment indicate that Frazier occupied the locus from as early as 1966 and from the mid 1970s until his death.14 Neighbors and friends visited Frazier at his home at the locus, joined him for drinks, sat with him or saw him on his porch, and watched him gardening.15 One affiant, the executrix of Frazier's estate, reported that Frazier was aware that the property at 1586 Main Street did not belong to him and was nervous that the town would find out that he did not own the property and kick him out.16 On April 28, 1997, after Frazier's death, a lawyer for his estate contacted the town to bring the town's potential interest in the locus to its attention and to inform the town that Lawrence was asserting that Frazier had acquired title by adverse possession.17
In an attempt to clear title, the town's board of selectmen on June 22, 1998, took the locus by eminent domain in fee simple on behalf of the town for municipal purposes including the future sale thereof and determined that no damages had been sustained.18 At its 1999 annual town meeting the town authorized the selectmen to sell the locus for a price no less than $150,000.19 On cross motions for summary judgment a Superior Court judge concluded that Lawrence failed to establish title.20 The Appeals Court affirmed.21 The Supreme Judicial Court granted Lawrence's application for further appellate review.22
Whether the true owner's lack of knowledge of its ownership interest defeats a claim of title by adverse possession on the ground that the use was not open and notorious?23
Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years under G. L. c. 260, § 21.24 The purpose of the open and notorious requirement is to place the true owner on notice of the hostile activity of the possession so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action.25 An owner's knowledge of its interest is not an element of proof of a claim of adverse possession, and an owner's lack of knowledge of ownership is not a defense to such a claim.26
No. The town's lack of knowledge of its ownership did not defeat Frazier's claim of title by adverse possession.27
The town became aware of its interest in the locus only in 1997, decades after the statutory period.28 Frazier's use satisfied the open and notorious element because he occupied the locus from as early as 1966, paid all real estate tax bills from at least 1969 until his death in 1996, appeared on the town's street lists as residing there from 1974 onward, rented the property to tenants, and received visits from neighbors who observed him gardening and on the porch.29 These acts constituted constructive notice to the world without any requirement that the town possess actual knowledge of its own ownership interest.30
The true owner's lack of knowledge of its ownership interest does not defeat a claim of title by adverse possession on the ground that the use was not open and notorious.31
Whether possession by tenants may be attributed to the adverse possessor to satisfy the twenty-year statutory period?32
A person claiming title by adverse possession need not personally occupy the land for twenty years. He may rely on the possession of his tenants, whose possession is his own.33 Where a tenant occupies the locus as the adverse possessor's tenant, that possession is the equivalent of the adverse possessor's own possession.34
Yes. Possession by tenants may be attributed to Frazier to satisfy the twenty-year statutory period.35
DiPietro occupied the locus as Frazier's tenant from September 5, 1967, through February 1, 1968, as established by the summary process action and writ of possession delivered to Frazier.36 The Domigs occupied the locus as Frazier's tenants from about January 1, 1969, until at least January 1973.37 Their possession counts as Frazier's own and bridges the necessary period from December 9, 1967, until December 9, 1987.38
Possession by tenants may be attributed to the adverse possessor to satisfy the twenty-year statutory period.39
Whether a claim of adverse possession against municipal land held for a public purpose is barred by G. L. c. 260, § 31 when the possession began before the statute's effective date?40
G. L. c. 260, § 31 provides that the statute shall not bar any action by any political subdivision for the recovery of land held for a public purpose.41 St. 1987, c. 564, § 46 states that the provisions shall not be construed to abrogate the rights of any person in an action to establish title by adverse possession who has seized or possessed real property for no less than twenty years prior to the effective date of the act.42
No. Although G. L. c. 260, § 31 generally bars adverse possession claims against municipal land held for public purposes after its effective date, Frazier's claim is preserved by the saving clause in St. 1987, c.
564, § 46. Frazier's possession of the locus, including the periods when his tenants DiPietro and the Domigs occupied it, was exclusive, continuous, and adverse to the town's ownership from 1965 until his death in 1996. This period fully encompasses the twenty years from December 9, 1967, to December 9, 1987, satisfying the statutory requirement before the bar took effect.43
A claim of adverse possession against municipal land held for a public purpose is not barred by G. L. c. 260, § 31 when the possession began before the statute's effective date.44