Registered Land, a Fence Encroachment, and Adverse Possession
A client owns a lot registered in the Land Court in Suffolk County. The decree and registered plan show the easterly line as a straight line between two granite bounds, 142.00 ft. A wooden fence built in 1998 by the neighbor stands 3.6 ft east of the registered line along the entire 142 ft; the neighbor has planted a hedge and keeps a shed on the strip. The client wants to sell and asks you to show the fence as the boundary because '25 years is enough for adverse possession.' The neighbor's deed is unregistered and describes the lot by metes and bounds with a distance that would place the line at the fence. The client also has a 2019 survey by another firm that shows the fence as the boundary and labels it 'boundary line per occupation.'
1. Does the neighbor's 25-year fence give title by adverse possession?
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Generally no. Registered land under the Land Court system is not subject to acquisition by adverse possession or prescription, except for limited statutory exceptions. The decree and registered plan are conclusive as to the registered owner's title. The 25-year period, even if all the usual elements are present, does not ripen into title against registered land. The neighbor's unregistered deed cannot override the registered decree; it may describe the neighbor's land, but it does not change the registered boundary. The fence is an encroachment, not a boundary. The client should not rely on the 2019 survey that labels the fence as the boundary; that label is legally unsupported if the land is registered. The surveyor should not certify or imply a boundary that conflicts with the decree.
2. What should your plan show, and what remedies are available?
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Show the registered boundary from the decree and registered plan, with the granite bounds and the 142.00-ft line. Show the fence as a physical feature and label it as an encroachment or occupation line, not as the boundary. Add a note that the parcel is registered land and that the fence is not a registered boundary. Do not show the neighbor's deed line as the boundary. Remedies: the client may petition the Land Court to amend the decree or register a conveyance or boundary agreement with the neighbor; if the neighbor claims title, the Land Court can determine the rights. A surveyor can prepare a plan for the petition or for a deed, but cannot quiet title. If the client sells, disclose the encroachment and the registered status; the buyer's attorney and lender need to know.
3. The other surveyor's plan is recorded and labels the fence as the boundary. How do you handle it?
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Do not adopt the label. Review the other plan and the Land Court decree; if the other plan conflicts with the registered plan, note the discrepancy in your file and on your plan if it is material. You are responsible for your own professional judgment. You may call the other surveyor to understand the basis, but a recorded plan is not a substitute for the decree. If the prior plan misstates registered land, the client should consult counsel about correction or a new plan. Do not repeat a false statement to avoid conflict; that would violate professional standards and could mislead the client, the Land Court, and the buyer.