Does the taking by a Town (for back taxes) interfere with the statutory time clock for Adverse Possession? In this case the adversarial land owner has used the subject property for 40+ years. Then in 2009 the Town takes the parcel and auctions it off. When the new owner appears, the adversarial land owner has the new owner “removed” from the premises, along with all the “junk” he deposits there.
Now they want to go forward with an adverse possession claim. Not so sure they will prevail given the interruption in the statutory (20 years) time period.
They had a clear opportunity to perfect title at the tax sale. The tax sale sold the premises because the taxes were not paid. The adverse possessor lost what he had in possession because he did not pay those taxes either.
In my opinion he is SOOL!
Paul in PA
Interesting question. Hope JB Stahl sees this thread.
I found this on a Mass lawyer's webpage:
" "The town’s title under an instrument of tax taking is, however, subject to redemption by any person having an interest in the land, at any time prior to the filing of a petition of a decree of foreclosure. M.G.L. c. 60, § 62 states as follows:
"Any person having an interest in land taken or sold for nonpayment of taxes… at any time prior to the filing of a petition for foreclosure under section sixty-five, if the land has been taken or purchased by the town and has not been assigned, may redeem the same by paying or tendering to the treasurer the amount of the tax title account of the land being redeemed, and interest at sixteen per cent…"
However, it is important to note that the rights a bona fide purchaser, i.e., a third party who purchases the property without knowledge of the situation, may trump any and all right to redeem the property.
EDIT: See post above by Sean O'Farrell.
I don't think it would interrupt it. The adverse possession happened at the moment all the requirements are met. If that was 30+ years ago then that's when it happened. Filing the claim of title is different than the actual occurrence of the adverse possession. At least that is how it works here in NY.
That said I have not done a lot of adverse possession cases so consult a local attorney, the client is going to need one anyways.
Tom
I can see a court having an interesting time with this case.
As the claimant at adverse possession seems to have a claim of 40+ years a question to be asked would be why he did not attempt to perfect his title long ago. That is not the course of one acting as the rightful owner of the parcel. After the statutory period has been met, long inaction after that event might indicate a lack of interest in actually owning the parcel. Some states (not Mass.) begin a new time clock for a claim for AP to be filed.
Obviously he has not felt himself to be the owner to the extent of paying taxes on the parcel. Although Mass. seems to have no specific requirement about this, it would appear to detract from such a supposed long standing claim.
It will be interesting to discover the remaining facts of this case. Maybe we could get a link.
was the tax taking against the man claiming possession? probably not, eh? so, wouldn't the town only be taking the interest from the record owner? if the AP claim is held true, then the taking should be invalid.
unfortunately, the auction is another matter, but you saw that up above.
i like the SOOL conclusion. he should have filed 20 years ago when the statutory period expired.
But wait, there's more! Given the auction, didn't somebody inspect the land? If so, they would have seen the open clear use of the land by someone. If the AP claim is only for part of the land, then you have another story. If the AP is based on the color of title and thus the entire parcel, then there would have to be some record of the deed.
here's a similar one: town does a tax taking, the town engineer prepares the plan that overlaps the next property by 50'. does the tax taking extend over onto the next property or is the erroneous plan invalid? (yes, it was invalid the moment a PE stamped it, but look at it seriously) they can only take what someone has title to or they have to name the other party and turn it into eminent domain.
> Does the taking by a Town (for back taxes) interfere with the statutory time clock for Adverse Possession?
I'm not sure about this, and it may be different in Massachusetts, but I think that it may be argued that the tax foreclosure breaks the privity between the successive occupants, and there must be privity between the parties in order to be able to tack the possessions.
Without tacking the current possessor hasn't occupied long enough. And the former owner no longer has color of title.
Equity aids the vigilant, not those who sleep on their rights.
As others have said, the time period can't be interrupted once it's over.
Things that will affect the claim are whether MA law requires good faith claim of right or not (or color of title); whether the claimant can argue they were actually paying taxes on the area in question; whether the claimant was duly notified of the tax sale of the area in question (this is often lacking due to the nature of the title).
Not necessarily SOL.
The adversarial land owner has enclosed the property with a 6’ chain link fence, and that fence is about 25 years old replacing the old wire fence that is still visible. They believed that this 125x200 strip of land belonged to their parcel.
After the auction, the new owner shows up, cuts the lock on the gate and piles construction debris on his new lot….(this is out in the boondocks and the 125x200 is a grassy area used for parking during the Fair).
Don't you just love this profession?
I think in MA that an adverse possession claim that ripened prior to the taking is a valid claim. Takings clear title at the moment and forward but not against a valid adverse possession claim.
Did the 125 x 200' strip enclose the entire lot that was sold at auction? Is your client's deed ambiguous? Could it have easily been perceived by the common man to include this strip? Will the damages include the price of the cut lock? Was there a legitimate owner of record of this strip? (The example I listed with the 50' over the line survey by an engineer was a taking against Owners Unknown, which baffles me as well). Did your client use it other times of the year, or just during carnival season?
No need to go to court if you really think / 'know' it's in your deed. The lawyers could trump it with that business listed above:
However, it is important to note that the rights a bona fide purchaser, i.e., a third party who purchases the property without knowledge of the situation, may trump any and all right to redeem the property.
What is the real value of the land to your client? Is it worth the court, lawyer, surveyor and other fees? If the guy makes $500 a year parking cars there, then I'd say let it go, but if there is a significant value, go for it.
When the new owner appears, the adversarial land owner has the new owner “removed” from the premises, along with all the “junk” he deposits there.
Seems like affirmative action to protect the claim was made. And intent to claim land that you know is not yours is not an element of adverse possession in MA.
Seem to me that the adverse claimant has a pretty good claim.
but, he did not know it was not his
this strengthens his claim
and makes me happy, i don't like it when people purposefully steal land
The Land Was Sold Because The Taxes Were Not Paid
Whether or not the adverse possessor had a right to the land, "THE LAND WAS SOLD BECAUSE THE TAXES WERE NOT PAID".
Adverse possession does not give one the privilege of not paying taxes.
The adverse possessor will ultimately lose.
Paul in PA
