PATRICIA FITZPATRICK, Individually and as Executrix of the ESTATES OF HAROLD G. MASON JR. and RITA L. MASON v. GERALDINE S. YEAMAN, RALPH E. YEAMAN, SR., JAMES YEAMAN, RALPH E. YEAMAN, JR., JUNE BELLIO, WALTER P. MASON, PAULINE S. MASON, DOROTHY KINNER, RICHARD CYBART, ROBERT CYBART, SR., FLORENCE CYBART, PAUL CYBART, DEBBIE (CYBART) AMIDON, CHARLES CYBART, ROBERT CYBART, JR., RONALD CYBART, MARK CYBART, ROGER CYBART, SR., STEVEN CYBART, JUDITH WESTLING, ROGER CYBART, and their HEIRS DEVISEES or LEGAL REPRESENTATIVES

Introduction

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 plaintiff’s motion for summary judgment is thus ALLOWED.

Facts

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. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty Nat’l 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 plaintiff’s 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 plaintiff’s counsel that Pauline did not leave a will and there is no record of Pauline Mason in the Probate Surrogate’s Court of the State of New York (the state of Pauline’s 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] Richard’s 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 Defendant’s 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 plaintiff’s 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 Ass’n 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 owner’s 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 possessor’s 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 possessor’s acts of possession and use. An owner’s knowledge of its interest is not an element of proof of a claim of adverse possession, and an owner’s 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).

Analysis

It is undisputed that the plaintiff’s 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 plaintiff’s 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 plaintiff’s 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.

Conclusion

For the foregoing reasons, I ALLOW the plaintiff’s 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.

SO ORDERED.

By the court (Long, J.)

Attest:

Deborah J. Patterson, Recorder

Dated: 4 September 2008