Adverse Possession on Summary Judgment: Combined Acts Establish Openness, Later Permission Does Not Defeat Hostility, and Color of Title Supports Constructive Possession

Introduction

In Deborah Tarrant v. Christopher Bartels and Amelia Bartels (Vt. Sup. Ct., Feb. 6, 2026), the Vermont Supreme Court affirmed summary judgment for lakeshore-property owners (defendants) who claimed title to a disputed strip of land by adverse possession and, as to the whole strip, by constructive possession. Plaintiff—substituted into the case after the original plaintiff’s death—held record title and challenged whether the defendants’ long-running uses were sufficiently open and notorious, hostile, and continuous, and whether the requirements for constructive possession were satisfied.

Key issues included: (1) whether cumulative, ordinary residential uses (driveway/turnaround, parking, greywater system, lawn care, garden, steps, recreation) can establish “open and notorious” possession as a matter of law; (2) whether alleged permission given in 2003 could negate hostility when the use began decades earlier; (3) whether constructive possession of an entire strip is available where boundary clarity is disputed; and (4) whether new theories raised on appeal were preserved given Vermont’s summary-judgment procedure.

Note on precedential force: This decision is an Entry Order by a three-justice panel, which the opinion itself states is “not to be considered as precedent before any tribunal.” Even so, it provides a useful, concrete application of established Vermont doctrines to common boundary-strip disputes and to summary-judgment preservation practice.

Summary of the Opinion

The Court affirmed the civil division’s grant of summary judgment, holding that undisputed evidence established adverse possession of the disputed strip: defendants (and their predecessors) used the area continuously since at least the early 1980s in ways consistent with ownership, making the possession open, notorious, and hostile for the fifteen-year statutory period. The Court further held that defendants obtained constructive possession of the entire strip because, even if boundary-marker clarity were debated, defendants’ predecessor acted under color of title by treating the iron-pipe line as the boundary and using the land up to that line as his own.

The Court also rejected (primarily on preservation grounds) plaintiff’s new appellate theory that the prior owner’s installation of improvements implied permissive use, emphasizing that a party opposing summary judgment must properly dispute facts and present theories in its Rule 56 response.

Analysis

Precedents Cited

  • Gallipo v. City of Rutland, 2005 VT 83, ¶ 13, 178 Vt. 244
    Cited for the appellate standard of review on summary judgment: the Supreme Court applies the same standard as the trial court. This frames the analysis as whether genuine disputes of material fact existed and whether defendants were entitled to judgment as a matter of law.
  • V.R.C.P. 56(a)
    Supplies the governing rule: summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The Court’s reasoning repeatedly returns to “undisputed evidence” and plaintiff’s failure to identify a concrete factual dispute that would change the legal result.
  • N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437 (1999)
    Provides the core adverse-possession test and statutory period: possession must be “open, notorious, hostile and continuous” for fifteen years, and adverse possession is characterized as a mixed question of law and fact. It is also the source for the constructive-possession framework, allowing full-parcel possession when: “(1) when the claimant is operating under color of title and (2) when the land is marked by clear and definite boundaries.”
  • Jarvis v. Gillespie, 155 Vt. 633 (1991)
    Two key contributions: (1) the claimant bears the burden to establish all elements; (2) “open and notorious” acts are those that would put “a person of ordinary prudence on notice of the claim.” The Court also relies on Jarvis for the contextual approach—acts must be evaluated “in light of the nature of the land,” and cumulative acts can establish openness even if each act alone might not.
  • Lysak v. Grull, 174 Vt. 523 (2002) (mem.)
    Used as an analogy for the sufficiency of typical “owner-like” maintenance and improvements (mowing, snow removal, fence/driveway/garden) to satisfy open and notorious possession. Here, similar owner-like actions supported judgment as a matter of law.
  • Progressive Ins. Co. v. Brown ex rel. Brown, 2008 VT 103, ¶¶ 8-9, 184 Vt. 388
    Anchors the preservation holding: issues must be presented below “with specificity and clarity.” The Court uses it to deem unpreserved plaintiff’s new appellate theory of permissive use inferred from the prior transaction and property improvements.
  • V.R.C.P. 56(c)(2)
    Not a “case” but central to the Court’s procedural analysis. It requires a paragraph-by-paragraph response to the movant’s statement of undisputed facts, with record citations, to show which facts are genuinely disputed. The Court’s preservation analysis is tied to plaintiff’s failure to dispute the decisive facts or clearly advance the permissive-use inference in the Rule 56 record.

Legal Reasoning

  1. Open and notorious: cumulative, owner-like uses can be dispositive.
    The Court treats the “open and notorious” inquiry as whether the acts would put “a person of ordinary prudence on notice of the claim” (Jarvis v. Gillespie). Plaintiff argued that the encroachment was small and not readily visible from her home or the road, but the Court clarified the legal standard is not actual visibility from specific vantage points; it is whether the acts are sufficiently apparent to charge a prudent owner with notice. Undisputed evidence showed decades of use as driveway/turnaround, parking (including an RV), a greywater field, recreation, reseeding, and maintaining stairs and a garden—collectively “consistent with the actions of a title owner.”
  2. Hostility and the timing of “permission.”
    Plaintiff’s earlier theory was that permission in 2003 defeated hostility. The trial court (affirmed) reasoned that permission granted after the statutory period has already run does not undo an already-completed adverse possession claim. The Court’s analysis effectively treats hostility as satisfied where the possession began and continued without permission long enough to mature into title, regardless of later neighborly accommodation.
  3. Preservation and the Rule 56 record control what can be argued on appeal.
    On appeal, plaintiff advanced a new inference: because the seller (as described by plaintiff) had established the leach field/driveway before the purchase, the buyer’s later use must have been permissive, undermining hostility and continuity. The Court refused to entertain this theory because it was not raised with the required specificity in the summary-judgment response, nor tied to properly disputed facts under V.R.C.P. 56(c)(2). Citing Progressive Ins. Co. v. Brown ex rel. Brown, the Court held the argument unpreserved, and treated the continuity argument as derivative of the same unpreserved permissive-use theory.
  4. Constructive possession: color of title can carry the whole strip even if boundary clarity is debated.
    The civil division found constructive possession under both N.A.S. Holdings, Inc. v. Pafundi routes—color of title and clear boundaries. On appeal, plaintiff focused on whether the iron pipes were a “clear and definite” boundary given plaintiff’s lack of awareness. The Supreme Court bypassed the need to resolve that factual debate by emphasizing an undisputed point: the predecessor found the iron pipes, believed they marked the northern line, and used the land up to them as his own. That sufficed for the “color of title” pathway to constructive possession, supporting title to the entire strip.

Impact

  • Property-law impact: The decision reinforces that routine but persistent “ownership-like” uses—particularly physical occupation for access (driveways/turnarounds), utilities (greywater/leach fields), and improvements (steps, garden, reseeding)—can satisfy open and notorious possession when viewed cumulatively and in context, making adverse possession amenable to resolution on summary judgment where facts are undisputed.
  • Litigation practice impact: The opinion is a pointed reminder that Vermont summary-judgment practice is record-driven. Parties must (a) dispute specific asserted facts with citations and (b) clearly articulate legal theories in the Rule 56 response. Otherwise, potentially case-changing theories (like permissive-use inferences) may be deemed unpreserved on appeal.
  • Constructive possession impact: The Court’s reliance on the “color of title” prong suggests that even if boundary markers are contested as “clear and definite,” constructive possession may still be established where the claimant can show a good-faith claim of title (or boundary) and actual occupation of part of the described area consistent with that claim.

Complex Concepts Simplified

Adverse possession
A way to gain legal title by using land like an owner for a long enough time. Vermont requires the use to be open (not hidden), notorious (obvious enough to give notice), hostile (without the true owner’s permission), and continuous (not abandoned) for fifteen years.
Open and notorious
Not about whether the record owner actually saw the use from their house; it asks whether a reasonably careful owner would have been put on notice by the kinds of acts performed on the land.
Hostile
In this context, “hostile” usually means “without permission,” not personal animosity. Later permission may be legally irrelevant if the adverse claim already matured after the statutory period.
Constructive possession
A doctrine allowing someone who actually occupies part of a parcel to be treated as possessing the whole parcel, if the legal conditions are met—here described (via N.A.S. Holdings, Inc. v. Pafundi) as operating under color of title and/or land marked by clear and definite boundaries.
Color of title
A claim of title that appears valid from the claimant’s perspective (often based on documents or perceived boundary markers) even if it turns out to be flawed. Acting consistently with that claim can support constructive possession.
Preservation (appeal)
To argue an issue on appeal, it generally must be clearly raised in the trial court. Under Vermont’s summary-judgment rules, that means disputing the right facts with record citations and presenting the theory in the Rule 56 filings.

Conclusion

The Court’s affirmance rests on two practical propositions drawn from established Vermont law: (1) decades of ordinary, cumulative, owner-like uses can satisfy “open and notorious” adverse possession as a matter of law when undisputed; and (2) constructive possession of an entire disputed strip can be supported by “color of title” even where boundary-marker clarity is contested. Just as importantly, the decision underscores that summary judgment is won or lost in the Rule 56 record: theories not clearly presented and fact disputes not properly supported may be treated as unpreserved on appeal.