Adverse Possession and Maine’s Tradition of Permissive Use


Casenote:  Weeks v. Krysa

In a case that shows that the finer points of adverse possession law in Maine are still open to interpretation, the Maine Supreme Court issued a ruling on July 17, 2008 overturning a lower court who had found for the party claiming adverse possession. The lower court had ruled in favor of the party who had asserted that they had obtained title to a piece of property through adverse possession based its seasonal use of the land in question.

The issue before the court was whether or not the use of the lot by the claimants as presented by the facts of the case was adequate to meet the burden of the elements of adverse possession under Maine law. The claimants use of the disputed lot consisted of only summer-time use, including such things as children playing there, crossing over the lot to get to a lake it bordered on, clearing trees, and the planting of a garden that extended onto the lot. Further, the claimants had paid the taxes on the lot for some years, but not for the past 20 years.

The court began its analysis by stating the law of an adverse possession case in Maine:

A party claiming title by adverse possession has the burden of proving, by a preponderance of the evidence, that possession and use of the property was (1) actual; (2) open; (3) visible; (4) notorious; (5) hostile; (6) under a claim of right; (7) continuous; (8) exclusive; and (9) for a duration exceeding the twenty-year limitations period.

The issue in the case came down to the fifth element, whether or not the use was in fact ‘hostile.’ The Court explained that Maine’s tradition of permissive land use negated the claim that the party’s use of the property could be considered hostile. The State has an "open lands tradition, [where] recreational use of unposted open fields or woodlands and any ways through them are presumed permissive and do not diminish the rights of the owner in the land."

The Court also pointed to an 1882 case to support the establishment of this tradition of permissive use of land. In that case the Court addressed the issue of crossing over fields and woodlands to access a "great pond." [1] There the Court explained that going back to the time when Maine was a part of Massachusetts such use was permitted, and accessing the pond would not considered trespassing. In the present case the lot bordered on a lake, and part of the use of the lot was to get to the lake.

The claim for adverse possession could not be established because the use of the lot of determined to be a permissive use, and not hostile. Since it was permissive, as under the States tradition, the owner did not need to restrict access in order to preserve ownership. This issue of permissive use applies when there is recreational use of open, unposted lands. [2]

The policy reasoning behind the tradition, which is given force of law, is to allow recreational use of unposted private lands. And as to not deter landowners from allowing recreational use, such use can never result in the loss of that land through adverse possession. [3]

As with all cases, the facts ultimately determine the outcome. Here the extent and type of use of the land by the claimants failed to show a hostile intent. The level of use was determined to be more of a recreational use, as opposed to evidence of a claim of ownership. And even though the lot in question appeared to be abandoned, the court noted that lack of use by the owner has no relevance to a case of adverse possession.


[1] Defined as "natural ponds exceeding ten acres."

[2] The case follows a split decision of the Maine Supreme Court in 2002 that arguably changed the law as to when the use would be considered permissive.

[3] The State has limited liability for those who open their land through the Recreational Use Statute.