Plaintiff Patricia Fitzpatrick brings this action to quiet title to the property located at 18 Front Place in Winchendon. She claims that she and her predecessors, her parents Harold and Rita Mason, have adversely possessed the property since 1974 and ousted their co-tenants (the defendants). Several of the defendants have been defaulted or have entered into agreements for judgment. The remaining defendants, June Bellio, Ralph Yeaman, Jr., and James Yeaman, contend that they never were notified of their potential interest in the property and, therefore, have not lost that interest. They do, however, acknowledge that the plaintiff and her predecessors have occupied the property exclusively and have treated it as their own (excluding the defendants except by invitation) since 1974. The plaintiff moved for summary judgment. Based upon the undisputed facts, as a matter of law, I find that the plaintiff (by tacking her predecessors acts) has met all of the elements of adverse possession, has ousted the defendants interests, and thus owns the property free and clear of any claims of the defendants in this case. The plaintiffs motion for summary judgment is thus ALLOWED.
Summary judgment is appropriately entered when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56; Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976). The following material facts are undisputed.
The property at issue in this case, located at 18 Front Place in Winchendon, originally was acquired by Thomas and Ellen Mason in the 1930s. Thomas and Ellen had seven children Elliot, Walter, Francis, Helena, Thomas, Harold (Sr.), and Ethel. At some time between 1936 and 1940, Ellen passed away. When Thomas passed away in 1940, he left the property to three of his children Elliot, Helena, and Ethel. When these three siblings passed away, leaving no children, their interest in the property passed to the remaining living siblings Walter, Francis, and Harold (Sr.) either through intestacy or by will. [Note 1] According to a letter from the plaintiffs counsel, the interest holders of Francis Mason have all deeded their interest to the plaintiff. Letter from James L. Kimball to the Justices of the Land Court at 2 (Feb. 13, 2007) (these interest holders were thus not named as parties in this action and are not bound by this order or the corresponding judgment).
The remaining interest holders of the property were thus in the family lines of Walter Mason and Harold Mason (Sr.). Walter died in 1969 with several children, but his interest in the property passed to his wife Pauline S. Mason via a residuary clause in his will. Pauline died in 1983 without any children. At the time of her death, her sole heirs were Dorothy Kinner, a niece, and Robert and Richard Cybart, her nephews. Ms. Kinner informed the plaintiffs counsel that Pauline did not leave a will and there is no record of Pauline Mason in the Probate Surrogates Court of the State of New York (the state of Paulines last known address). Ms. Kinner entered into an agreement for judgment with the plaintiff, stating that the plaintiff takes title by adverse possession from the Defendant Dorothy Kinner, and her Heirs, Devisees or Legal Representatives, to the property at issue in this case. Agreement for Judgment at 2 (June 12, 2007). Robert Cybart and all of his children were defaulted pursuant to Mass. R. Civ. P. 55(a) on October 16, 2007. [Note 2] Richard Cybart and all of his children also were defaulted pursuant to Mass. R. Civ. P. 55(a) on October 16, 2007. [Note 3] Richards wife, Florence Cybart entered into an agreement for judgment with the plaintiff, stating that the plaintiff takes title by adverse possession from the Defendant Florence Cybart, and her Heirs, Devisees or Legal Representatives, to the property at issue in this case. Agreement for Judgment at 2 (June 4, 2007).
Harold Mason had two children with his wife, Maude Harold G. Mason, Jr. and Geraldine (Mason) Yeaman. Geraldine Yeaman was married to Ralph E. Yeaman, Sr. Geraldine died in 1979 and Ralph died in 1992. They have three surviving children James Yeaman, Ralph E. Yeaman, Jr. and June Bellio all of whom have participated in this action. Harold G. Mason, Jr. married Rita L. Mason. Harold and Rita allegedly acquired title to the property by a deed dated May 13, 1974. [Note 4] Harold died on May 29, 2004; Rita died on April 16, 2005. They were survived by their child, plaintiff Patricia Fitzpatrick.
The plaintiff, both individually and as executor of her parents estates, filed this action to quiet title, claiming that she has acquired the defendants interest in title to the property by adverse possession and ouster. The only defendants remaining in the case to answer to such a claim are James Yeaman, Ralph E. Yeaman, Jr. and June Bellio. In his answer, Ralph denies that the [p]laintiff and her predecessors in title . . . exercised complete dominion and control over the Subject Property. The [p]laintiff and her predecessors merely occupied the subject property but did not do so in an open and notorious manner, due to their failure to notify the [d]efendant and others of their intention to control and occupy the Subject Property. Answer of Defendant Ralph A Yeaman, Jr. at 2, ¶ 24 (March 8, 2007). He also claims that he and his predecessors never were given proper notice of their right to ti[t]le and interest in the Subject Property and that the title through deed was obtained by the plaintiff and her predecessors in a manner that violated the Defendants right to title and interest in the Subject Property. Id. at 2, ¶ 37. June similarly denies that the plaintiff and her predecessors have used the property as if they were owners, denies that they have had exclusive possession of the property, and denies that they thus acquired title to the property. Answer to Amended Complaint for Adverse Possession at 2, ¶¶ 65, 67, 68, 69 (July 15, 2007) (although June simply stated Deny with no explanation). James stated that knowledge [of] this property was never made available to my parents or siblings. Response and Claim (filed Aug. 8, 2007).
At the hearing on the plaintiffs motion for summary judgment, however, James and Ralph conceded that (1) Harold Mason, Jr. had always lived at the property; (2) they assumed that Harold and Rita owned the house; and (3) they never went to the property without permission. Similar to their statements in their answers, they stated that they never received notice regarding their potential interest in the property when Harold Mason, Sr. and Maude Mason passed away. They indicated that Harold, Jr. took care of both of those estates when they passed away.
Other pertinent facts are included in the analysis section below.
Adverse Possession and Ouster
Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years. Ryan v. Stavros, 348 Mass. 251 , 262 (1964) (citations omitted); see also Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961); MacDonald v. McGillvary, 35 Mass. App. Ct. 902 , 903 (1993). The burden of proving adverse possession is on the person claiming title thereby and extends to all of the necessary elements of such possession. Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003); see also Gadreault v. Hillman, 317 Mass. 656 , 661 (1945); MacDonald, 35 Mass. App. Ct. at 903. If any of the elements remains unproven or left in doubt, the claimant cannot prevail. Sea Pines Condominium III Assn v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004) (hereinafter Sea Pines). The acts of the wrong doer are to be construed strictly and the true owner is not to be barred of his right except upon clear proof. Cook v. Babcock, 65 Mass. 206 , 210 (1853). Whether the claimant has met his or her burden is a question of fact. Kershaw, 342 Mass. at 320.
Overall, the test for adverse possession is the degree of control exercised over the strip by the possessors. Shaw v. Solari, 8 Mass. App. Ct. 151 , 156 (1979). In determining whether the use and control over the land are sufficient to establish adverse possession, [t]he nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put. Ryan, 348 Mass. at 262 (quoting LaChance v. First Natl. Bank & Trust Co., 301 Mass. 488 , 490 (1938)); Kershaw, 342 Mass. at 320 (same). The acts that establish adverse possession cannot be few, intermittent [or] equivocal. Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992); Ryan, 348 Mass. at 262. Rather, they must be so open and notorious that [they] may be presumed to have been known to the rightful owner, Lawrence, 439 Mass. at 421, i.e., such that they place him on constructive notice that a claim of right was being asserted. Id. at 421 n.5, 422. Thus, the claimant must act in a manner inconsistent with the true owners rights. Id. at 421; see also Sea Pines, 61 Mass. App. Ct. at 847.
The claimant must use and enjoy the property continuously for the required period as the average owner would use it, without the consent of the true owners and therefore in actual hostility to him irrespective of the possessors actual state of mind or intent. Kendall, 413 Mass. at 624; see also Shaw, 8 Mass. App. Ct. at 156-57. Most importantly for purposes of this case, [t]he elements of open and notorious use . . . are descriptive of the adverse possessors acts of possession and use. An owners knowledge of its interest is not an element of proof of a claim of adverse possession, and an owners lack of knowledge of ownership is not a defense to such a claim. Lawrence, 439 Mass. at 422 (emphasis added).
In addition to the requirements the plaintiff (as claimant) must prove to acquire title by adverse possession, she also must show ouster since the remaining defendants are co-tenants. Nickerson v. Nickerson, 235 Mass. 348 , 352 (1920) ([i]t is true as a general rule that the possession of one tenant in common, even if exclusive, it being consistent with the right of his cotenant, is not a disseisin, and an ouster or some equivalent act is necessary to accomplish this). [T]he sole possession of land by a tenant in common with the receipt of the profits will not alone be sufficient evidence of an ouster. But after the sole possession and appropriation of profits have been continued with the knowledge of the cotenants for a long series of years, a presumption does begin to arise against them. Id.; see also Allen v. Batchelder, 17 Mass. App. Ct. 453 , 456 (1984) ([A] long exclusive and uninterrupted possession by one, without any possession, or claim for profits by the other, is evidence from which a jury may and ought to infer an actual ouster. There need be no turning out by the shoulders to manifest a decisive intent to occupy to the exclusion of the absent cotenant. (internal citations and quotations omitted)). Cases are unclear on exactly how long the possession need be in order for ouster to have occurred. Allen, 17 Mass. App. Ct. at 457 (ninety years in this case was enough; the case also cites to other cases in which there was exclusive possession for thirty to forty-seven years).
However, it is clear that there is no requirement that the cotenant have knowledge that he is dispossessed. Id. at 456. The underlying inquiry . . . has always been what knowledge the absent party must be deemed to have had. Id. at 457 (quotations and citation omitted). [A]bsence and failure to make a claim, if unexplained or controlled by any evidence tending to show a reason for such neglect or omission to assert a right, furnishes evidence from which the trier of fact ought to infer an actual ouster and adverse possession. Requiring actual knowledge of dissessin would deprive the principle of prescription of much of its value in quieting controversy and giving sanction to long continued usages. Id. (internal citations and quotations omitted).
It is undisputed that the plaintiffs predecessors - her parents Harold G. Mason, Jr. and Rita L. Mason - resided at the property located at 18 Front Place in Winchendon from May 15, 1974 to their deaths in May 29, 2004 and April 16, 2005, respectively. Harold and Rita used the property as their primary residence. They maintained the property, which included painting the house several times over the years, raking leaves in the yard, shoveling and plowing snow, and mowing the lawn. They also were identified as the owners of the property in records maintained by the town, were listed in the phone book with the property as their address, and received their mail at the property. Finally, they paid the real estate taxes on the property since 1974. [Note 5] The plaintiff resided at the property from the beginning and, after moving out, continued to reside in the area. [Note 6] After her parents passed away, the plaintiff continued to maintain the property and pay its taxes.
At the hearing on the plaintiffs motion for summary judgment, James and Ralph Yeaman appeared and did not contest any of these adverse acts. Indeed, both stated that they assumed the Masons owned the house. They also stated that they never visited the house without permission and have not visited the property for over thirty years. [Note 7]
Based upon all of the evidence before me, it is clear that the plaintiff and her predecessors have treated the property as if they were its sole and exclusive owners since 1974. The plaintiffs predecessors resided at the property year-round for over thirty years and used it in such a manner as to indicate to the world that they were the owners of the property. The remaining defendants have admitted that they never visited the property without permission. Rather, their sole contention is simply that they never had notice that they had a potential interest in the property and, therefore, never knew they had to take some action with regard to clearing title. As stated above, however, it is not necessary for the defendants to know that they were potential owners [Note 8] or that they were being dispossessed. Lawrence, 439 Mass. at 422; Allen, 17 Mass. App. Ct. at 456. As the defendants themselves admit, they always thought that the plaintiff and her predecessors owned the property and never went to the property without permission. Based upon the plaintiff and her predecessors adversely possessing the property for more than thirty years, the defendants knowledge that they claimed sole possession of the property, and the defendants failure to make a claim to the property, ouster of the defendants has occurred. Nickerson, 235 Mass. at 352; Bellis v. Bellis, 122 Mass. 414 , 415-16 (1877); Allen, 17 Mass. App. Ct. at 456-57. Accordingly, the plaintiff now owns the property free and clear of any claims by the defendants in this case.
For the foregoing reasons, I ALLOW the plaintiffs motion for summary judgment. The plaintiff and her predecessors in interest used the property in such a manner to prove both adverse possession and ouster. Judgment shall issue accordingly.
By the court (Long, J.)
Deborah J. Patterson, Recorder
Dated: 4 September 2008
[Note 1] According to a family tree attached as an exhibit to the letter from Attorney Kimball, one of the siblings, Thomas, died in 1943 without any children and prior to the deaths of Elliott, Helena, and Ethel. I therefore assume that Thomas never had any interest in the property.
[Note 2] Robert Cybart was married to Laura Cybart. Together, they had five children Steven, Robert, Jr., Roger, Charles, and Ronald. Laura, Robert, Jr. and Roger all predeceased Robert, Sr. Although Laura was not defaulted, since she predeceased Robert, Sr., she no longer had any interest in the property. Furthermore, her husband and children, all of her potential heirs, were all defaulted.
[Note 3] Richard and his wife, Florence, had five children as well Paul, Mark, Joel, Debbie (Cybart) Amidon, and Judith (Cybart) Westling. As stated above, all five children were defaulted.
[Note 4] Deed from Harold G. Mason, Jr. to Harold G. Mason, Jr. and Rita L. Mason (May 13, 1974), recorded at Worcester (South) Registry of Deeds at Book 5492, Page 171. The plaintiff did not provide a copy of such deed; however, I take judicial notice of it. Schaer v. Brandeis University, 432 Mass. 474 , 477 (2000). That deed states, [f]or my title see Estates of Thomas F. Mason Worcester Probate Court Docket Number 129578; Elliot M. Mason Worcester Probate Court Docket Number 250632; Helena Mason Worcester Probate Docket Number 250631; Ethel Mason Worcester Probate Court Docket Number 255692. Those probate court documents were not provided to the court; however, this omission is not material to this memorandum and order.
[Note 5] All of these adverse acts were alleged in the plaintiffs concise statement of facts supporting her motion for summary judgment and at the hearing on the motion for summary judgment. The remaining defendants did not submit any opposition to the plaintiffs motion and, as stated in this analysis section, did not contest these adverse acts at the hearing. Their only dispute regarding such facts is what legal conclusion arises from them. In his answer, Ralph Yeaman contested the alleged fact that the plaintiff has exercised complete dominion and control over the Subject Property. Answer of Ralph A Yeaman, Jr. at 2, ¶ 24 (March 8, 2007). However, Ralph stated that they did occupy the property and, instead, takes issue with whether the plaintiff and her predecessors did . . . so in an open and notorious manner, due to their failure to notify the Defendant and others of their intention to control and occupy the Subject Property. Id.; see also id. at 2, ¶ 37 (similarly stating that the defendants were not notified of their right to tile [sic] and interest). As explained in this order, the plaintiff and her predecessors were not required to notify the defendants of their intent in order to acquire title by adverse possession. June Bellio also denied certain allegations in the plaintiffs complaint; however, she provided no explanation as to why she denied the statements. An adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Mass. R. Civ. P. 56(e) (emphasis added); see also Land Court Rule 4; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Pederson v. Time, Inc., 404 Mass. 14 , 17 (1989); Chiu-Kun Woo v. Moy, 17 Mass. App. Ct. 949 , 950 (1983) (Summary judgment is not a casual procedure. It is a proceeding that bids fair to be dispositive of the case and casual or supine reaction to a moving partys affidavits is not a minor error.), rev. den. 391 Mass. 1104 (1984). Although the defendants in this case are pro se, they must be held to the same standards.
[Note 6] I therefore find that she had personal knowledge of the adverse acts from 1974 to the time her parents passed away.
[Note 7] James and Ralph indicated that the last time they visited the property was in 1969 or 1970. They indicated that they only visited with their grandmother, Maude, and always asked permission before entering the property. It appears from this testimony that Harold and Rita lived at the property prior to the 1974 deed. Whether or not these dates are accurate and whether or not they resided there prior to 1974 is not material to this decision.
[Note 8] Their potential interest in the property may have been a matter of record, as evidenced by the plaintiffs counsels letter dated February 13, 2007 (summarizing a title search conducted by the Worcester County Abstract Company) that indicated that several family members (including the remaining defendants) had a remainder interest in the property. The only deed in the record (via judicial notice) is a deed from Harold G. Mason, Jr. to Harold G. Mason, Jr. and Rita L. Mason, which states that Harold received his title via the Estates of Thomas F. Mason Worcester Probate Court Docket Number 129578; Elliot M. Mason Worcester Probate Court Docket Number 250632; Helena Mason Worcester Probate Docket Number 250631; Ethel Mason Worcester Probate Court Docket Number 255692. Although this deed likely did not convey all of the interest in the property, this question of fact is not material since, as stated above, [a]n owners knowledge of its interest is not an element of proof of a claim of adverse possession, and an owners lack of knowledge of ownership is not a defense to such a claim. Lawrence, 439 Mass. at 422.