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glassbird · Mar 3, 2012, 05:06 PM

I and my family own a 100 foot wide piece of beach on a freshwater pond on the Cape. It has been in my family for almost 100 years (5 generations). There is no house, just the beach. No one in my family now lives on the Cape, but some of us visit the beach periodically during the summers. At some point, years ago, the owners of a cottage nearby asked if they could use the beach. They offered to keep the beach clean, and keep a sign on it saying "Private Beach, Keep Out". In return, we could park our cars on their land when we came down to use the beach. This arrangement has been working out just fine, except that when we asked them to pay half of the insurance on the property they refused. I was not happy about this, but my parents did not press the issue.

My concern right now is that this arrangement has been in place for close to 20 years, and I am wondering if they can claim some legal right to ownership of the beach. Our agreement with them is completely verbal. Could they claim squatter's rights, even though we are also using the beach, and pay taxes on it?

smoothy · Mar 3, 2012, 05:49 PM

No... there has to be open and hostile possession (there wasn't as you allowed them to use it)... AND they will have had to pay the taxes on it as well (I assume you have been paying that).

joypulv · Mar 3, 2012, 06:03 PM

In Massachusetts you must possess the property being claimed, continuously for 20 years (Mass. Gen. L. ch. 260, sec.21) To meet the requirements for adverse possession you must also show that:
1) You were the exclusive possessor and actually entered the property.
2) Your possession must be open and notorious--your possession must be seen. The possession must be appropriate to the type, size and use of the land. Enclosures, houses, cabins, payment of taxes all help establish your claim. The general idea is to give the owner reasonable notice that you are in possession and give him the opportunity to eject you.
3) Your possession must be adverse to the owners claim, in other words without the owners consent. If the owner has given permission for you to be on the property you can't claim the property adversely.
4) Your possession must be continuous (for 20 years). If your entry was only occasional you may be deemed a trespasser and not be able to claim adverse possession. However, certain seasonal or intermittent uses satisfy the continuous element if the average owner of a particular piece of property would use it in that manner (e.g. a summer home).

The above is from lawyersreview.com. But having lived in MA many years of my life, I know people who were worried enough about adverse possession to put up fences and no trespassing signs. You might do well to have a friendly sit down over coffee and work out some written agreement just for peace of mind.

AK lawyer · Mar 3, 2012, 06:05 PM

Originally Posted by glassbird

... when we asked them to pay half of the insurance on the property they refused. I was not happy about this, but my parents did not press the issue. ...

I'm curious: what kind of insurance did you figure you needed on unimproved beach property?

Originally Posted by joypulv

... 3) Your possession must be adverse to the owners claim, in other words without the owners consent. If the owner has given permission for you to be on the property you can't claim the property adversely. ...

This is consistent with the general law on adverse possession just about everywhere. So the OP shouldn't have to worry about adverse possession. But to be absolutely 100% nailed-down, it would be a good idea to put the agreement in writing. If the other parties to this agreement haven't signed anything, at least send it to them in the form of a letter to the effect that "this is to confirm our previous agreement that ...".

Fr_Chuck · Mar 3, 2012, 06:10 PM

My guess liability insurance, I have it on all of my undeveloped property. I add it as a rider to my homeowners.

glassbird · Mar 3, 2012, 09:17 PM

Re: the insurance... my parents wanted some sort of protection in case someone drowned while using the beach, or was badly cut by broken glass, or something along those lines. The beach is right on a popular walking/biking trail, and I am sure that people ignore the "Private Beach" sign and swim there anyway. (I don't think that trespassers should be able to sue when they get injured, but I know it happens all the time.) Anyway, we do have a small policy in place for liability, and we pay for it entirely ourselves.

So, even though our agreement was only verbal, the fact that we gave them permission to use the beach is enough to keep them from claiming it? Is our situation strengthened at all by the fact that various members of my family are using the beach from time to time? Or is that irrelevant? Perhaps I should also mention that these people (the ones who have our permission to use the beach) are, in fact, lawyers. (My parents just recently figured this out somehow.) The cottage is their "summer house".

And yes, we pay the taxes every year. I want to send them a certified letter telling them that they may not use the beach anymore, until we get something in writing. But I cannot afford to pay an attorney to write something up.

Fr_Chuck · Mar 3, 2012, 09:30 PM

So write them a letter with a simple agreement, that gives them a right to use the beach as long as they >>> and >>> what ever you want, and that either party can cancel the agreement with a >>> day notice. Explain if you do not receive it back within a certain amount of time, they will no longer be allowed to use it. You will need to make arrangements for lawn care or other maintenance f they are no longer taking care of it.

AK lawyer · Mar 4, 2012, 06:58 AM

Originally Posted by Fr_Chuck

So write them a letter with a simple agreement, that gives them a right to use the beach as long as they >>> and >>> what ever you want, and that either party can cancel the agreement with a >>> day notice. Explain if you do not receive it back within a certain amount of time, they will no longer be allowed to use it. You will need to make arrangements for lawn care or other maintance f they are no longer taking care of it.

And what will OP do if they don't receive it back? Sue them for trespassing? Tha's why it would be better to simply send them, certified mail, return receipt required, a confirming letter. That way, 100 years from now, the OP's great-grandchildren can show the court the return receipt stapled to a copy of the letter, and prove that the use was permissive.

The fall-back is that the neighbors cannot show that they were "exclusive possessors"- see Joypulv's post.

joypulv · Mar 4, 2012, 07:45 AM

Maybe I sounded too worried about something you don't really need to worry about, unless you know of something that might be looming in the future. Just because they are lawyers doesn't mean a friendly talk can't happen. I wouldn't tell them not to use it until you get something in writing. I would in fact ask to get together in June and tell them that a few people are advising you to be careful and ask them what they think. After all, it's in their interest to have a good arrangement, and adverse possession is extremely far fetched. (I was thinking of an empty lot that an owner wanted to build in but which had been used as a shortcut for many years by many people. He fenced off the lot for a certain amount of time to see if anyone claimed the right to walk across it. Crazy but true.)
Issues to discuss might be how often they use the beach, and how often and how many cars you get to park at their place. That's what I would be concerned about.
I would not put this in writing necessarily in case they sell their property with beach rights, unless you DO hire a lawyer to make sure it can't pass on. Don't assume that something in writing is always best when a loose agreement is better. Maybe two sentences that renew once a year but only by mutual agreement.

glassbird · Mar 10, 2012, 04:31 PM

OK! Thank you all for your input. I will try to work out some face-to-face time with them this summer. I have not laid eyes on the actual owners in at least a decade. The owners loan the house out to family and friends quite a bit, and I have met a few of them from time to time. But I will send them a letter, and ask them to meet with me.

Thank you again. My mind is eased!

ballengerb1 · Mar 10, 2012, 05:08 PM

"payment of taxes" I think you have been paying the taxes and not the folks who borrow your beachfront, right. To further show and demonstrate ownership make a new sign or alter the existing sign to read Glassbird Private Beach - Keep out MA law is different than most. You can own all the way down to the low tide mark or wet sand areas but the public can come on your wet sand and shellfish due to some law back in the 1600's. Weren't they burning people at the stake right about then?