Totman v. Malloy

In Totman v. Malloy, 431 Mass. 143, 725 N.E.2d 1045 (2000) two abutting parcels of land in Stoughton were owned by "close" family members. A dispute later arose as to the exact location of the boundary line separating the parcels, and litigation ensued in which the owner of one parcel claimed to have established title by adverse possession to a portion of the abutting parcel. A justice of this court declined to make such a finding, ruling that "none of the acts performed by plaintiffs on the disputed area was sufficiently hostile to overcome the inference of permissive use grounded in the close family relationship." 6 LCR at 339. The Appeals Court reversed, declining to recognize a presumption or inference of permissive use among "close" family members, and stating that the better approach is to examine whether the use of the disputed land is actual, open and exclusive for a period of twenty years "in light of the circumstances of each particular set of claimants." Totman, at p. 147. In other words, the court held that the trial court should consider each claim on a case by case basis. Totman v. Malloy, sets out the general test for "permission". As held in that case, "the essence of non-permissive use is lack of consent from the true owner:" Whether a use is non-permissive depends on many circumstances, including the character of the land, who benefited from the use of the land, the way the land was held and maintained, and the nature of the individual relationship between the parties claiming ownership.