ENOC NIEVES and EMILIA NIEVES v. GUERTIN REALTY TRUST, EMERY J. GUERTIN, TRUSTEE

Introduction

Plaintiffs Enoc and Emilia Nieves are the record owners of the property located at 3 Roxanna Street in Framingham, shown as Lot 12 on the attached Exhibit 1. In this action, they also claim title by adverse possession to approximately 1,177 square feet of the abutting Lot 11 (the “disputed area”), which is owned by defendant Emery Guertin, as trustee of the Guertin Realty Trust (the “Guertin property”). The disputed area includes a portion of the Nieves’ driveway (the “driveway area”) and a grassy area between the driveway and what the plaintiffs characterize as a “tree line” on Lot 11 (the “lawn area”). [Note 1]

Partial summary judgment previously was entered granting the Nieves title by adverse possession to the driveway area, [Note 2] leaving only the dispute over the lawn area for further adjudication. [Note 3] That issue was tried before me, jury-waived. As more fully set forth below, based upon the parties’ stipulation of facts, the exhibits, the testimony of the witnesses, and my assessment of the credibility, weight and inferences to be drawn from that evidence, I find and rule that the plaintiffs have acquired title to the lawn area by adverse possession.

Facts

As noted above, the plaintiffs live at 3 Roxanna Street in Framingham, which they purchased from Josephine Pariani on July 25, 1997. Trial Ex. 1, Deed from Josephine Pariani to Enoc and Emilia Nieves (July 25, 1997), recorded in the Middlesex Registry of Deeds in Book 27514, Page 533. Josephine and Marcario [Note 4] Pariani had previously owned the property since October 20, 1931. Trial Ex. 2, Deed from Charlotte A. Davis to Marcario and Josephine Pariani (Oct. 20, 1931), recorded in the Registry of Deeds in Book 5606, Page 471. The adjacent property, the Guertin property, has been owned by the Guertin Realty Trust since June 11, 1992. Trial Ex. 5, Foreclosure Deed from Shawmut Bank, N.A. to Emery J. Guertin, Trustee of the Guertin Realty Trust (June 11, 1992), recorded in the Registry of Deeds in Book 22835, Page 334. [Note 5]

On August 8, 1997, Mr. Guertin had the Guertin property surveyed and its record lot lines marked on the ground, the results of which indicated that the plaintiffs were encroaching. The disputed area is a triangular section of land, including a portion of the plaintiffs’ driveway and the adjacent lawn area located on the northwestern portion of the Guertin property and bounded, in part, by a so-called “tree line” (three small oak trees and a large willow tree). [Note 6] Based upon the survey, on December 11, 1997, Mr. Guertin’s attorney sent a letter identified as a “Notice of Encroachment” to the Nieves, demanding them to cease and desist using the Guertin property. Trial Ex. 10, Letter from John P. Garrahan, Esq. to Enoc and Emilia Nieves (Dec. 11, 1997). The plaintiffs commenced this lawsuit on February 4, 2004 to resolve the parties’ competing claims to the disputed area.

As noted above, only the claim to the lawn area currently remains for adjudication. The plaintiffs claim that they and the Pariani family have used the lawn area as their own property for more than seventy years. The evidence at trial establishes the following uses of the lawn area. [Note 7] Donald Pariani, Josephine’s and Marcario’s son, testified that his father maintained the lawn area since they moved to 3 Roxanna Street in 1932. [Note 8] Specifically, Marcario would mow the lawn approximately one time per week, water the lawn approximately two times per week (depending on the weather), and rake leaves as necessary. [Note 9] Donald began to help his father with such maintenance activities when he was approximately fourteen or fifteen (1942 or 1943). Even after moving out of his parents’ house, Donald would visit at least two times a week (often three times a week) and would continue to help maintain the property, including the lawn area as described above. [Note 10] After his father’s death in 1985, Donald was solely responsible for these maintenance activities until his mother sold the property in 1997.

Donald further testified that his family planted a garden [Note 11] and a flower bed [Note 12] in the lawn area when he was approximately twelve years old (around 1940) and maintained them until the 1960s when his father retired. [Note 13] At some point between 1945 and 1954, his father planted two bushes in the lawn area and would periodically maintain them by trimming them. [Note 14] Donald also testified that at some point between 1945 and 1954, the willow tree was planted (he assumed, but never verified, that his father planted it) and the three oak trees were established. However, Donald noted that they neither trimmed nor maintained the trees and simply allowed them to grow. [Note 15]

Donald also testified that from 1949 to 1954 when he moved out of his parents’ house, he parked his car on the grass in the lawn area every night and for the entire day on weekends. [Note 16] Donald testified that he parked in the same location as depicted in Exhibit 20 where there are two lines of dirt with grass in the middle. After he moved to his own home in 1954, he continued to park in the same location approximately two to three times per week for at least a couple of hours when he visited his parents. This continued until his father passed away in 1985. After that, he would generally park in the driveway; [Note 17] however, if he and his sister were visiting at the same time, one of them would park in the lawn area.

Finally, Donald testified that his family used the lawn area as part of their property. When they were children, they would play on the lawn area, they had a fire pit in the lawn area near the garage for a couple of years, and they generally used it for their enjoyment from 1932 to 1997.

When the plaintiffs purchased the property in 1997, they continued similar activities in the lawn area. Specifically, they mowed and watered the lawn approximately every other week depending on the weather, planted grass seed, unsuccessfully tried to plant a rose bush, removed the bushes planted by the Parianis, removed an apple tree from the area, and generally used it as part of their property. As noted in the Agreed Upon Facts, the plaintiffs also routinely trimmed bushes and trees along the tree line and would rake leaves as necessary. Trial Ex. 24 at 4, ¶ 23.

Other pertinent facts are included below.

The Standard for Adverse Possession

“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). “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) (quoting Mendonca v. Cities Service Oil Co., 354 Mass. 323 , 326) (1968)); see also Gadreault v. Hillman, 317 Mass. 656 , 661 (1945); MacDonald v. McGillvary, 35 Mass. App. Ct. 902 , 903 (1993). “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”). “[T]he 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 v. Zecchini, 342 Mass. 318 , 320 (1961).

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). “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 Natl. Bank & Trust Co., 301 Mass. 488 , 490 (1938). 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, 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 owner and therefore in actual hostility to him irrespective of the possessor’s actual state of mind or intent.” Ottavia v. Savarese, 338 Mass. 330 , 333 (1959) (quoting Am. Law of Property, § 15.4 at 776-77). Thus, the claimant must act “in a manner inconsistent with the true owner’s rights.” Id. at 334; see also Sea Pines, 61 Mass. App. Ct. at 847. Such use places the owner on “constructive notice” that a claim of right is being asserted so that he may take legal action. Lawrence, 439 Mass. at 421 n.5, 422; Ottavia, 338 Mass. at 333.

Analysis

As noted in the Agreed Upon Facts and as I specifically find based upon the evidence presented at trial, the Parianis “always used and maintained th[e] lawn area for their own enjoyment.” Trial Ex. 24 at 4, ¶ 19. The plaintiffs continued to do so after purchasing the property. Id. at 4, ¶ 23. In addition, “[t]he Parianis never obtained permission to use the Disputed Areas and at no time did anybody, including any neighboring property owner, ever object to the Parianis’ use of any portion of the Disputed Areas, contest ownership of it, or claim any encroachment by [them] during the fifty plus years they lived there.” Id. at 4, ¶ 21; see also id. at 4, ¶ 22. Until Mr. Guertin’s Notice of Encroachment letter, this was also true for the plaintiffs. Indeed, Mr. Guertin admits that he “has never given the Nieves, or their predecessors in title, permission to use the Disputed Area.” Id. at 4, ¶ 28 (emphasis added). Furthermore, he admits that he “has never used or made improvements to the Disputed Areas” and is “unaware of how the Guertin Property was used or maintained by [his] predecessors in title.” Id. at 5, ¶ 29; 4, ¶ 26. These admissions, corroborated by evidence at trial, conclusively show that the plaintiffs have established that they and the Parianis have used the property exclusively and without permission. Accordingly, the only issue that remains is whether the plaintiffs’ and the Parianis’ uses of the lawn area are acts sufficient to establish adverse possession and whether they occurred continuously for twenty years or more.

Uncontroverted testimony establishes that the plaintiffs and the Parianis regularly mowed the lawn from 1932 to the filing of this action on a weekly or a bi-weekly basis except during winter. [Note 18] They also routinely watered the lawn (anywhere from twice a week to every other week) and raked leaves as necessary. These acts were in a well-defined area – the lawn area shown on Exhibit 1. Prior to the establishment of the trees and other vegetation along the eastern side of the lawn area, the Parianis consistently mowed up to the line of overgrown, tall grass on the Guertin property (the line where the trees were later located). [Note 19] Once the trees and other vegetation were established, they mowed up to the trees. This testimony is corroborated by the photographic evidence submitted. See Trial Exs. 12-20. Although the combination of the trees and other vegetation along the eastern line of the lawn area does not itself amount to a fence, a fence “is but one factor in determining the degree of control.” Shaw, 8 Mass. App. Ct. at 157. The maintained lawn area is in stark contrast to the trees and vegetation and, more importantly, Mr. Guertin’s overgrown vacant lot adjacent to the plaintiffs’ property. It thus creates a “visible and readily apparent line of demarcation,” Sea Pines, 61 Mass. App. Ct. at 849. [Note 20] See Trial Exs. 21-23.

As noted above, “[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.” LaChance, 301 Mass. at 490. The parties’ properties are in a residential neighborhood and the plaintiffs (and the Parianis for decades before them) used the disputed area (both the lawn area and driveway area) consistently and continuously as part of their property. The plaintiffs and the Parianis used it similar to how landowners use a suburban lawn: mowing, watering, raking, and family activities. [Note 21] In addition, the Parianis also planted bushes, a garden, and a flowerbed in the lawn area and even parked on the lawn. Combined, these acts are “similar to those which are usually and ordinarily associated with ownership,” Id. at 491, and were conducted in a manner that “people residing in the neighborhood would be justified in regarding the possessor as exercising the exclusive dominion and control incident to ownership . . . .” [Note 22] Shaw, 8 Mass. App. Ct. at 156-57.

Although the plaintiffs and the Parianis did not construct a permanent structure in the lawn area (they did, however, install a driveway in the overall disputed area), this fact is not fatal to their claim of adverse possession. The combination of all of their acts (mowing, watering, raking, planting bushes and gardens, parking cars, and generally maintaining the clearly delineated area) continuously and exclusively since 1932 without permission of Mr. Guertin or his predecessors is sufficient to establish adverse possession to the lawn area. Hurlbert v. Kidd, Memorandum and Order Pursuant to 1:28, 73 Mass. App. Ct. 1104 , 2008 WL 4820662 at *1-2 (Nov. 7, 2008); Thomas v. DiPinto, Memorandum and Order Pursuant to 1:28, 72 Mass. App. Ct. at 1116, 2008 WL 4190558 at *3 (Sept. 15, 2008); see also Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 540 (1996) (maintenance of lawn, hedge, and retaining wall); MacDonald, 35 Mass. App. Ct. at 904 (“use of the small strip of land in dispute consisted of little more than maintenance of a suburban lawn”); [Note 23] Shaw, 8 Mass. App. Ct. at 157 (area used for parking, suburban lawn, shrubs, chicken coop).

Conclusion

For the foregoing reasons, I find and rule that the plaintiffs have established that they have acquired title to the lawn area depicted on Exhibit 1 by adverse possession. As this court already decided, the plaintiffs also established title to the driveway area by adverse possession as well. Judgment shall issue accordingly.

SO ORDERED.

Keith C. Long, Justice

Dated: 6 July 2009