MISC 296673

July 6, 2009


Long, J.



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.


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.


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).


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.


Keith C. Long, Justice

Dated: 6 July 2009


[Note 1] The lawn area is outlined on the attached Exhibit 1.

[Note 2] Memorandum and Order on the Parties’ Cross-Motions for Summary Judgment (Dec. 29, 2006).

[Note 3] Although the defendant initially raised several affirmative defenses (failure to state a claim, unclean hands, plaintiffs allegedly recognizing the defendant’s “superior title,” and waiver), the defendant waived such defenses. Joint Pre-Trial Memorandum at 14 (July 20, 2007).

[Note 4] Although the parties referred to Mr. Pariani as Marciano in their filings with the court, the records indicate that his name was actually Marcario. See, e.g., Trial Ex. 2 (Deed); Voluntary Administration to the Probate Court (page 62 of the Appendix of Materials in Support of Plaintiffs’ Motion for Summary Judgment); Deposition of Donald Pariani at 65 (same).

[Note 5] This deed also conveys additional lots, none of which are relevant to this Decision.

[Note 6] Although Exhibit 1 only depicts the four trees along the northern portion of the eastern line of the lawn area, photographic evidence shows significant vegetation along the southern portion of the eastern line. See, e.g., Exs. 12, 13, 15, & 21.

[Note 7] Trial Ex. 24, the parties’ Agreed Upon Facts, generally describes the same uses.

[Note 8] Although the Parianis obtained record ownership of the property in 1931, Donald testified that they did not actually move to the property until 1932.

[Note 9] Donald testified that when they first moved to the property and even when he first began helping his father, the trees were not established. During that time period, they would mow the lawn area up to the point where the trees were later located, leaving high grass on the other side. After the trees were established (at some point in the 1940s (Trial Transcript at 59)), they mowed to the tree line. The record contains no evidence that the grass on the other side of the line where the Parianis mowed was ever mowed by the defendant’s predecessors.

[Note 10] After his father retired in the 1960s, Donald’s parents would spend approximately five months of the year in Cape Cod. When his parents were there, Donald testified that he continued to maintain the property and would visit between one and three times each week to “do whatever maintenance was necessary to keep the property up.” Trial Transcript at 51.

[Note 11] Donald testified that the garden was located along the side of the garage and extended to the east about five to six feet. Trial Transcript at 36. The garden was a raised area of earth that was not fenced in or bordered in any way, but the Parianis mowed a strip of lawn next to the garden in order to walk along side of it (Donald characterized the strip as a “footpath”). Id. at 104. Donald testified that Exhibit 20 shows the general location of the garden, noting that it was in the area of the two wooden boards in that photograph. Id.

[Note 12] Donald testified that the flower bed was approximately three-feet wide and five- to six-feet long and was located on the eastern side of the lawn area. Trial Transcript at 87.

[Note 13] Donald first testified that the garden was maintained until the 1950s; however, he later corrected himself when he recalled that his father stopped gardening when his father retired in the 1960s and then lived on the Cape for five months of the year. I find this testimony credible.

[Note 14] The bushes were located in the general vicinity of the words “Area Claimed” on Exhibit 1, between the eleven-inch and twelve-inch oaks. Trial Transcript at 85.

[Note 15] This was with one exception – after a significant storm, Marcario hired a company to remove branches that were damaged in the storm and, at that time, had the willow tree trimmed.

[Note 16] Donald did so to leave the driveway free so that his parents could get their car to and from the garage at the back of the property. See Ex. 1.

[Note 17] Since his mother did not drive, it was no longer necessary to keep a clear path to the garage.

[Note 18] The fact that the lawn was not maintained during winter is not fatal to their claim of adverse possession since seasonal acts are sufficient (if done on a continuous basis) and most people living in New England do not maintain lawns during winter.

[Note 19] As previously noted, see n.9, supra, there was no evidence that the grass was ever mowed on the other side of this line.

[Note 20] Donald testified that the photographs accurately depict the two properties during the time he lived at and visited 3 Roxanna, except that the trees and vegetation are larger in the photographs and the grass used to be greener. Donald also testified that the remaining portion of the Guertin property was always vacant and overgrown grass, with a couple of trees and a sand pit area. Indeed, Mr. Guertin admits that his property is only used for storage. Trial Ex. 24 at 4, ¶ 24.

[Note 21] At trial and in their post-trial briefs, Mr. Guertin appears to suggest that the fact that the Parianis may not have been the ones that originally altered the land to create the suburban lawn defeats the claim of adverse possession to the lawn area. This argument is without merit. As the Appeals Court noted in a case with a very similar fact pattern to this action, “given the particular characteristics of the property, the plaintiffs’ maintenance of, and regular mowing of, the lawn within this bordered and framed small area was sufficient to establish and support a claim of adverse possession.” Thomas v. DiPinto, Memorandum and Order Pursuant to 1:28, 72 Mass. App. Ct. at 1116, 2008 WL 4190558 at *3 (Sept. 15, 2008) (emphasis added).

[Note 22] Indeed, when reviewing the photographic evidence, the lawn area clearly looks like it is part of the plaintiffs’ property. Trial Exs. 12-20.

[Note 23] Although the property in MacDonald also had a fence between the two suburban lawn areas, this fact was not necessarily required in order to find adverse possession. Rather, the fence provided a clear delineation between the two suburban lawns and supported the finding that the use was exclusive. Here, there is no dispute that the use was exclusive and, as discussed above, the lawn area is clearly demarcated.