In an important decision for owners of waterfront property, a divided Appeals Court panel has ruled in a case of first impression that where registered land expands by accretion, the owner need not return to court to separately register the accreted land. As a result, that land enjoys the same protection against adverse claims as the originally registered parcel.
In Brown v. Kalicki (pdf), the plaintiffs were owners of adjoining beach lots in Harwich, Massachusetts. The lots were registered in the 1920s and 1930s and each lot’s southern boundary was “Nantucket Sound.”
Over the ensuing decades, accretion caused the beach to expand seaward by some 350 feet. In 2011, the owners filed so-called “supplemental petitions” asking the Land Court to determine the sidelines of the expanded lots. Several Harwich residents intervened in those cases and objected, claiming they had acquired a prescriptive easement to use the beach. The status of the accreted land as registered – or not – was critical, since one of the key benefits of registered land is that it is immune from claims that others have acquired title by adverse possession or easement rights by prescription.
Two of the three Appeals Court justices were of the view that the accreted land should be deemed “automatically” registered. They noted that under ordinary principles of property law, it’s clear that the owners have title to the accreted land. As to whether that land is registered, the majority noted that since littoral boundaries frequently change:
if accreted land is not deemed registered upon its creation, owners of littoral property would need to “amend their [c]ertificates of [t]itle on a regular basis to prevent any loss of their property rights due to adverse use by another. This would be inconsistent with one of the principal purposes of the registration system: ‘to make titles certain and indefeasible.'”
Because the accreted land was deemed registered, the majority affirmed the Land Court’s dismissal of the interveners’ prescriptive easement claim.
The dissenting justice was of the view that because the accreted land (1) did not exist at the time the lots were originally registered, (2) is not “identified with geographical particularity” on a plan, and (3) has not been the subject of a separate in rem registration proceeding, it cannot be registered land.
Though it’s a close call, I think the majority got it right. Rather than “automatic” registration of the accreted land, this outcome is the natural result of registering land with an ever-changing water boundary. The Land Court’s original registration not only referred to the lots’ southern boundary as “Nantucket Sound” but also specified that “[a]ll of said boundaries except the water lines, are determined by the Court” to be as shown on the registration plan (emphasis added). This reflects the Land Court’s recognition that the southern boundary was mutable and the lots’ registered status extended to that boundary, whether it were to move seaward due to accretion or landward due to erosion.
The interveners have applied to the Supreme Judicial Court for further appellate review, so the SJC will have the last word, one way or the other. Stay tuned.
