Methods of Acquiring Real Estate
Inheritance – The acquisition by law from someone who died without a will.
Devise – The acquisition of real estate from one who died testate (with a will). The recipient is the beneficiary that is named in the will.
Gift – The making of a gift is the physical transfer of the deed from the donor to the donee without an exchange of money.
Purchase – Seller/Buyer scenario. Transfer of the deed to the property for a perviously agreed to dollar amount.
Adverse Possession – Least likely way for property to be acquired. In adverse possession the real estate is acquired through continuos, open, and notorious possession of it for no less than twenty years.
“Continuous” – not necessarily everyday, it is only necessary that he/she do so in a manner that is consistent to the use for which the land exists. This could be vacation property, farming fields, etc.
“Open” – The real estate would need to be occupied in a way where if the legal owner would be able to notice the inhabitance after a reasonible amount of inspection. The adverse possessor may not be trying to hide the fact they are living on the property.
“Notorious” – Without the right to occupy. The person who is inhabiting the property must not have been given permission to occupy the property.
Issue of “Tacking”
“Tacking” – a rule of law which allows one adverse possessor to, under certain circumstances, tack a prior adverse possessor’s occupancy onto his own.
Tacking exists when there is some sort of relationship between the primary adverse possessor and the succeeding adverse possessor.
Types of Relationships
Contract – Interest in the tacking may be sold. “I am selling my five years of interest in this property to John”
Donor/Donee – The interest may be gifted.
Will/Beneficiary – Interest may be left in the will, or passed on to nearest of kin. “I wish to pass on my ten years of interest in this property to my daughter.”
*If the property is sold during the adverse possession, the clock continues to run. They adverse possessor does not need to “start over.”
Establishing Ownership Through Adverse Possession
In Massachusetts, Adverse Possessor would need to register their possession of the property with the land courts. The Process is:
File petition to register land where the facts of the adverse possession would be disclosed.
Notification must then be given to anybody who has a legitimate interest in the property.
The Land would then be surveyed
The intent to acquire the land would then need to be published in the newspaper, or some other media outlet.
Testification in court to determine if property will be granted or not.
*If contested, adverse possessor would need to prove their inahbitance of the property for twenty years with facts and/or evidence.
Termination of Adverse Possession (Owner’s Rights)
If the owner finds that their property is being inhabited without their permission they have the right to begin the process for terminating the adverse possession. They may generally achieve this in two ways:
Self Help – True owner must retake possession of the property and remain on it for one year after the repossession. They MAY NOT use force or violence. This way is not generally safest because there is not proof that the property has been repossessed.
Legal Action – Owner may register legal ownership with the land court, and they may get the assistance of the local sheriff in evicting the adverse possessor. This is the recommended way because there is a physical record of true ownership and repossession. It also keeps the owner from harm through the use of professionals to remove the adverse possessor from the property.
6. Survivorship – Occurs when part owner of a piece of real estate acquires more ownership upon the death of another owner.
- If Owner A and Owner B each own 50% of a property, and Owner A dies; Owner B receives the remaining 50% of the property rights.
If the distribution is unequal and divided among more than two part owners, the deceased party’s share of the ownership is divided equally among the remaining owners.