Published on: February 14, 2011

            We’ve all seen them in the newspaper.  Legal notices with print so small your head hurts trying to read them.  Ironically, the people who actually read those notices can cause even bigger headaches, especially for litigants in real estate matters.

            Take a recent case from the Massachusetts Appeals Court, RJR Para Corp. v. Pond, 78 Mass. App. Ct. 362 (2010), for example.  The plaintiff sued in the Land Court to establish a claim of adverse possession to a certain parcel in Medway and Milford.  The record owner of that land was Metcalf F. Pond, who had acquired it in 1888.

            Assuming that Mr. Pond had died, and based on the plaintiff’s “diligent efforts” to locate other persons who might have an interest in the land, the plaintiff obtained court approval to give notice of its claim by publication.

            No one answered, and the plaintiff got a default judgment.  Big win for the plaintiff, right?  Not exactly.  Apparently, the plaintiff’s “diligent efforts” were not diligent enough.  Although the plaintiff discovered that Mr. Pond had a wife, the plaintiff either did not pursue or did not discover any further information concerning whether Mr. Pond had any heirs who might have an interest in his neck of the woods.

            Enter Edward W. Gately, whom the Court impliedly likened to a “bounty hunter in troubled titles”.  Mr. Gately discovered that the Ponds had a daughter and grandchildren who had families of their own.  The Ponds’ grandson had a widow, Viola Payson, who assigned her interest in the property to Mr. Gately for $1,000.00.  Mr. Gately sought to intervene to vindicate the interest he purchased from Viola Payson.  Other heirs of Mr. Pond intervened on their own to seek relief from the default judgment, and assert that their interests had been foreclosed without due process by reason of inadequate notice to them.

            Land Court Judge Keith C. Long allowed the other heirs to intervene but denied Mr. Gately’s motion, based upon his lack of standing.  Mr. Gately appealed and the Appeals Court reversed, ruling that since Ms. Payson could have intervened in her own right, there was no reason why Mr. Gately, as assignee of Ms. Payson’s rights, may not stand in her shoes.  The Appeals Court reversed the order denying Mr. Gately’s motion to intervene and remanded the matter to the Land Court for further proceedings.

            What does this mean going forward?  While it is evident that the plaintiff took shortcuts, whether intentionally or inadvertently, in seeking to establish its claim to Mr. Pond’s land by adverse possession, the plaintiff may still be able to prove its claim, so long as it can establish all of the elements of adverse possession.

            The plaintiff in this case, and plaintiffs in similar cases, should undertake their best efforts to name everyone who could possibly be uncovered who might have an interest in the land that is sought by adverse possession.  Otherwise, as has happened here, additional people may come out of the woodwork after the fact, and be able to vacate a default judgment.  Litigants in these situations need to be confident that the title they are acquiring will be marketable, such that a title insurer would be willing to write a policy on such property.

            Additionally, it is clear that the Appeals Court rejects the notion that claims by bounty hunters in troubled titles who discover and pursue long-dormant property interests held by heirs of the record owner are somehow illegitimate.  Accordingly, litigants who seek to press valid claims of adverse possession against someone else’s forgotten land should prepare for the possibility that a random person may show up out of the blue and expect to be paid off.

            If you would like further information please contact Robert Nislick at rnislick@meeb.com or at 781-843-5000 (152).

For a copy of the case please click here.