The phrase “open and notorious” sounds like a lyric from a gangsta rap song. In the realm of real estate law, however, the term relates specifically to the concept of “adverse possession.” Adverse possession occurs when one makes open use of land that is legally owned by someone else.
Under Massachusetts law, to make out a claim of adverse possession it is necessary to engage in “open and notorious” use of someone else’s land for at least 20 years. “Open and notorious” means, in essence, that your activities that would be obvious to the actual owner. Recent caselaw establishes that such use can involve gardening and maintaining land. To be more specific, mowing, fertilizing, and occasional trimming of trees and shrubs is probably enough.
To give an example, let’s say the record owner (that is, the person with a deed) owns a large field that is wholly undeveloped. You start to engage in activities such as gardening and yard maintenance on a small portion of his land. Whether or not he actually notices what you are doing, the law will generally presume that he has “constructive notice” of your activities. As long as your activity is “open and notorious,” you are potentially engaging in activities sufficient to establish adverse possession — presuming those activities occur for 20 years.
If you think you might have a claim of adverse possession, or if someone is claiming that they adversely possessed land that you own, Attorney Alex Hahn is happy to discuss your situation. Feel free to drop him an email.
