PETER H. HENRY and JEANNE L. HENRY v. ALFRED J. MAININI and the HEIRS AT LAW OF LEON A. MAININI

Plaintiffs, Peter Henry and Jeanne Henry, commenced this action on May 27, 2008, seeking to quiet title to a parcel of real property, known as and numbered 15 Learned Road in Ashland (the “Premises”), of which they claim to be owners of record. The plaintiffs state in their complaint that they have maintained actual possession of the Premises adversely, continuously, exclusively, openly, and notoriously since 1978, thus establishing title by adverse possession and overcoming an apparent “glitch” in their record title. The Defendants, possible owners of a fractional interest in the premises, filed an answer alleging that the plaintiffs have failed to meet their burden of proof that they have adversely possessed the Premises sufficiently to establish title.

On January 6, 2009, defendant Alfred J. Mainini, having failed to file a responsive pleading, was defaulted pursuant to Mass. R. Civ. P. 55(a). Trial was held on April 28, 2009. By agreement of the parties, no court stenographer was present but the testimony was electronically recorded. Both Plaintiffs testified on their own behalf. Defendants called no witnesses. Exhibits 1-4 were admitted into evidence by agreement. Plaintiffs and Defendants each filed a Post-Trial Brief, the former on May 28, 2009, and the latter on June 1, 2009.

After reviewing the record before the Court, I find the following facts:

1. On March 3, 1978, Plaintiffs purchased for $8,700 a parcel of undeveloped land located at 15 Learned Road, Ashland, Massachusetts. They later cleared the parcel and constructed a house thereon. The deed was duly recorded in the Middlesex (South District) Registry of Deeds (the “Registry”).

2. The sellers of the Premises as listed on Plaintiffs’ deed were Aurora Mainini, Executor [sic] of estate of Aniceto Mainini, under license to sell, Marble L. Mainini, Frederick Mainini, and Claire Bertorelli.

3. At some time prior to the sale to the plaintiffs, Aniceto Mainini owned a one-third share of title to the Premises. Marble L. Mainini, Frederick W. Mainini, and Claire Bertorelli owned the other two thirds as Heirs of Marble Mainini.

4. In 1970, however, prior to the aforementioned deed, Aniceto Mainini had deeded his one-third interest in the Premises for consideration of less than one hundred dollars to his wife, Aurora Mainini. This deed was duly recorded at the Registry.

5. In 1974, also prior to the 1978 deed, Aurora Mainini conveyed her interest in the Premises to her sons, Alfred and Leon Mainini, as tenants in common, for consideration of less than one hundred dollars. The deed, too, was duly recorded in the Registry.

6. As a result of the two pre-1978 deeds, Aniceto P. Mainini no longer had an interest in the property at the time of his death. Accordingly, his widow and “Executor”, Aurora P. Mainini, was not a proper grantor in the deed into plaintiffs.

7. From 1978 to 2004, Plaintiffs maintained the Premises as their principal residence. Their daughter and son-in-law took possession in 2004. During the time they resided on the property, Plaintiffs, who are still the owners of the property, paid all taxes levied on it and maintained the land and structure, including mowing the lawn, shoveling snow, performing usual and ordinary maintenance, and carrying out functions commonly performed by landowners. Their daughter and son-in-law still carry on the same activities.

8. In 1990, Plaintiffs applied for an equity line from a predecessor of Bank North, listing the Premises as security. The loan was granted and plaintiffs were not notified of any title problem at that time.

9. In 1999, Plaintiffs applied for a second equity line from Bank North. The attorney handling the refinancing, Attorney Robert Sullivan, alerted plaintiffs at this time to a possible cloud on their title by sending them a copy of a letter he had written to Defendant Alfred Mainini on May 10, 1999 in which he asked Alfred to sign a confirmatory deed to the Premises. Mr. Mainini never responded to the letter. This was the first time Plaintiffs had ever been notified that someone other than themselves might have a claim of an ownership interest in the property. Plaintiffs still received the line of credit, the purported title defect notwithstanding.

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“Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Kendall v. Selvaggio, 413 Mass. 619 , 621-22 (1992) (quoting Ryan v. Stavros, 348 Mass. 251 , 262 (1964)). The burden of proof for adverse possession lies with the person claiming title and applies to each element of such possession. See Holmes v. Johnson, 324 Mass. 450 , 453 (1949). In determining whether title by adverse possession has been established, the court considers “the degree of control exercised over the strip by the possessors.” Shaw v. Solari, 8 Mass. App. Ct. 151 , 156 (1979). “‘The 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.’” LaChance v. First Nat’l Bank & Trust Co., 301 Mass. 488 , 490 (1938), quoted in Ryan, 348 Mass. at 262. “Acts of possession which are ‘few, intermittent and equivocal’ [are insufficient to] constitute adverse possession.” Sea Pines Condominium III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004); see Kendall, 413 Mass. at 624 (quoting Parker v. Parker, 83 Mass. 245 , 247 (1861)). Making substantial improvements to the land, such as building a house or a stone wall, Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961), is strong evidence of the passing of title through adverse possession. Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993).

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. “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 v. Town of Concord, 439 Mass. 416 , 422 (2003).

In the case at hand, the plaintiffs built a house on the Premises soon after purchasing it, and continued to maintain the property as their principal place of residence for more than twenty years. The house represents a substantial improvement to the land. From 1978-2004, Plaintiffs mowed the lawn, kept the house in general repair, and paid all taxes and utilities on the Premises. There is no question that the plaintiffs used the Premises openly and notoriously to the exclusion of all others. At no time did they attempt to conceal their possession of the Premises; their deed was recorded for all to see in the Registry.

Defendants’ only contention pertains to the continuity element of adverse possession. Plaintiffs applied for an equity line on their house once, in 1990, and again in 1999. During the second refinancing, Plaintiffs were notified of a problem with the chain of title, namely, that in 1970, Aniceto Mainini had conveyed his one-third interest in the Premises to his wife, Aurora, who then conveyed it to her two sons (Defendants) in 1974. Because of these two conveyances, Aniceto’s executrix, Aurora, was not a proper grantor in the deed to Plaintiffs four years later. Alfred and Leon Mainini should have been the grantors of the Premises.

Defendants argue that Plaintiffs’ memories may somehow be cloudy regarding when exactly they discovered the problem with their title. If Plaintiffs became aware of the title defect in 1990, Defendants assert, that would have interrupted the continuity required for adverse possession. I do not agree the Plaintiffs’ knowledge of this error, alone, is not sufficient to interrupt the continuity of their use. In any event, I credit Mr. Henry’s testimony that he was not notified of the defect during the 1990 financing. Although counsel for the bank notified Plaintiffs of a title defect during the 1999 application, there is no evidence to suggest that Plaintiffs were alerted to such error in 1990. Furthermore, the fact that Plaintiffs became aware of their title problem in 1999 is irrelevant to the determination of adverse possession. By that time, Plaintiffs had already maintained the residence continuously, exclusively, openly, notoriously, and adversely for more than twenty years, thus meeting the statutory requirement.

In addition to the requirements Plaintiffs must prove to acquire title by adverse possession, they must show also ouster, because the remaining defendants are co-tenants of the Premises. Nickerson v. Nickerson, 235 Mass. 348 , 352 (1920). “[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.” (citations omitted)). “Absence 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.” Allen, 17 Mass. App. Ct. at 456 (citations omitted).

In the case at hand, Plaintiffs have made use of the Premises for over thirty years as their primary residence. There is nothing on the record to suggest that Defendants made any attempt to make a claim against this activity. Therefore, I find it appropriate to infer actual ouster of Defendants.

CONCLUSION

For the foregoing reasons, this Court concludes that Plaintiffs have established title by adverse possession to the Premises. Plaintiffs substantially improved the Premises by building a house on it, paying taxes and utilities, and keeping the Premises in general repair. Because the plaintiffs maintained the house continuously and openly as their principal residence for over twenty years, they have established a claim of adverse possession to the Premises. I find no evidence to prove that Plaintiffs’ use of the Premises was interrupted by recognition of Defendants’ claim of right before the statutory period of twenty years had passed. Plaintiffs have met their burden of proof for adverse possession in this matter. Accordingly, I find and rule in favor of Plaintiffs.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: June 15, 2009