Adverse possession, a favorite of first year law school students, is a well-worn area of law that goes back hundreds of years. Despite its lengthy common law history, issues of first impression occasionally still arise. The recent Massachusetts Land Court case of Thornton v. Driscoll, No. 20 MISC 000345 (Sept. 8, 2022) (Vhay, J.) presented one such novel issue that had no clear answer under Massachusetts case law. The Thornton case ultimately resulted in a determination that adversely possessed property acquired after a mortgage is granted for the same property is taken subject to the mortgage.
Adverse possession, in its simplest terms, is the equivalent of squatter’s rights. In Massachusetts, if a person actually possesses property of another for 20 years in a way that is open, notorious, exclusive, and adverse to the interests of the property owner, the title to the property is acquired by the adverse possessor. To officially establish title to the property, the adverse possessor of that property must bring a lawsuit for a declaration that they are, in fact, the new owner.
But what happens if the prior owner grants a mortgage on the property acquired by adverse possession before a lawsuit is brought? The court in Thornton was faced with this issue. At its core, the Thornton case considered whether the two defendants had adversely possessed portions of the plaintiff’s neighboring property. After determining that defendants took portions of the plaintiff’s property by adverse possession, the court considered what happens to the mortgage that the plaintiff granted seven years before the case went to trial.