JUDITH SANFORD-HARRIS, Trustee JSH Family Realty Trust v. PHYLLIS B. HORSLEY

Judith Sanford-Harris, (“Sanford-Harris”) as Trustee of JSH Family Trust, filed the complaint in this action on January 18, 2008. In her complaint, the plaintiff seeks a declaration, pursuant to G.L. c. 260, § 21 and G.L. c. 187, § 2, that she has by adverse possession gained title to a portion of (or by prescription has established an easement over) land owned by Phyllis B. Horsely (“Horsley”). Horsley is the record owner of property (“Horsley Property”) located at 5-7 Elm Hill Park, Boston, Suffolk County, Massachusetts pursuant to a deed dated June 30, 2006 and recorded with the Suffolk County Registry of Deeds (“Registry”) on October 20, 2006 at Book 40591, Page 326. Sanford-Harris, as trustee of J.S.H. Family Trust under a declaration of trust dated September 12, 1991 and recorded with the Registry on November 1, 1991 at Book 17116, Page 178, owns of record the neighboring parcel (“Sanford-Harris Property”), residential property at 9-11 Elm Hill Park, Boston, Suffolk County, Massachusetts, pursuant to a deed dated September 27, 1991 and recorded with the Registry in Book 17116, Page 182. Sanford-Harris originally took title individually by deed dated November 4, 1982, recorded at Book 10137, Page 60. There is a driveway located on the portion of Horsley's land that abuts the Sanford-Harris Property. It is to that roughly half of the driveway which is nearest her holding (“disputed area”) to which Sanford-Harris lays claim.

On February 19, 2008, the defendant filed a motion to dismiss the plaintiff’s claim. This motion was denied on March 12, 2008 without prejudice to it being recast as a motion for summary judgment. On March 13, 2009, Horsley moved for summary judgment with a supporting memorandum of law, affidavits, and deposition testimony. On April 13, 2009, the plaintiff filed an opposition to the motion for summary judgment with supporting materials. On June 9, 2009, the court (Piper, J.) held a hearing on the defendant’s motion for summary judgment and then took the motion under advisement.

The following facts are properly before the court for consideration based on materials submitted pursuant to Mass. R. Civ. P. 56 (c) and Land Court Rule 4 and appear undisputed:

1. Plaintiff Judith Sanford-Harris, as trustee of the J.S.H. Family Trust, holds title to the property located at 9-11 Elm Hill Park, improved by a three-family structure.

2. Defendant Phyllis B. Horsley holds title to the property located at 5-7 Elm Hill Park, improved by a two family residential structure.

3. There is a paved driveway between the two properties that is bordered by the house lot on the Horsley Property on the right, and the house lot on the Sanford-Harris Property on the left, as the properties are viewed from the street. The parties agree that all or almost all of the driveway which lies between their two houses is located on the record lot of the Horsley Property. It is not possible to park a car within the driveway area without parking on the record lot of the Horsley Property. The disputed area claimed by the plaintiff accommodates a single vehicle width, and is the strip of the paved driveway area closest to the plaintiff’s house.

4. The driveway was constructed, in its initial configuration, in the 1950s or 1960s by agreement of Leora and Hunter Tynes (“Tynes”), then owners of the Sanford-Harris Property, and Susan Foster, the then owner of the Horsley Property. In 1980, Susan Foster conveyed title to the Horsley Property to Lorraine Foster (“Lorraine Foster” or “Foster”), but retained a life estate and resided there until Susan Foster’s death in August 1982. The Tynes and Susan Foster shared the driveway, and each household parked on the side closest to their houses. Prior to about 1970, the driveway was not paved and there were no clearly established curb cuts in the sidewalk in front of the driveway. The Tynes paid to install the curb cuts, take down the hedges that were on the left side of the driveway to make room for four cars to park. The Tynes and Susan Foster verbally agreed in around 1970 to share the cost of paving the expanded driveway, and that agreement provided, in some sense, that the Tynes and their tenants, the Hartgroves, had some permission, at least for some period of time, to park on the left side of the driveway. The exact terms of the permission to park are not precisely shown without dispute in the record, but the permission existed, as conceded by the plaintiff. She in her submissions to the court acknowledges that there existed a “license” for the Sanford-Harris Property owners and tenants to use the disputed side of the driveway, but contends that the permission ended, and the use became adverse, January 8, 1980, when Foster took title. This date, then, is the earliest limit of the claimed possessory period.

5. When properly arranged, side to side and bumper to bumper, four cars are able to park in the driveway.

6. Sanford-Harris lived at 9-11 Elm Park Hill from at least November 1982 until sometime prior to August 1986. Sanford-Harris parked in the disputed area at the left side of the driveway.

7. In March 1983, Sanford-Harris received a letter from Foster requesting that she and her tenants stop parking in any part of the driveway.

8. Edward and Betty Hartgrove (“Hartgroves”), became first floor tenants of the Sanford-Harris Property in 1956. Edward Hartgrove lived in the first floor apartment and parked in the disputed area until his death in 1998. Betty Hartgrove drove until 2002, but according to the record, did not park in the disputed area. She moved out in 2004.

9. Keith Hartgrove, the Hartgroves’ son, lived at the Sanford-Harris Property during his childhood, and returned to the apartment after living at other residences twice. Keith Hartgrove returned to the Sanford-Harris Property after living at other residences for several years in the late 1980s, and from 1998 or 1999 until 2002.

10. In 1983, Sanford-Harris constructed a new driveway, for the parking of one car, between the Sanford-Harris Property and 13 Elm Hill Park, the property to the left of the house located on the Sanford-Harris Property; this new driveway was used primarily by the Hartgroves.

11. Michael Bishop rented the second floor apartment as tenant of Sanford-Harris from August 1986 until 1992. His wife Mona Bishop moved into the apartment in February 1987. They parked at least one car in the disputed area for most of their tenancy.

12. From 1992 to 1993, the second floor was occupied by a woman who parked on the street.

13. The Hall family, a mother and at least one daughter, moved into the second floor apartment in 1993. The Halls parked on the street most of the time.

14. In 1992, the Dillard family rented the third floor apartment at the Sanford-Harris Property. The Dillards parked at least one car on the street. In the early 1990s, Daryl Dillard (“Dillard”) began parking his car in the disputed area. After receiving a letter from Sanford-Harris requesting that he not park in the driveway, he nonetheless parked in the disputed area between one and four times per month. The Dillard family moved out of the apartment prior to August 2002.

15. After Edward Hartgrove’s death in 1998, Steven Johnson (“Johnson”), a neighbor living several houses away, received permission to park in the disputed area from Loretta Foster. Johnson claims that he parked in the disputed area every day.

16. Keith Hartgrove moved back to the Sanford-Harris Property in 1998 or 1999 after his father’s death and parked his car in the disputed area. Johnson blocked Keith Hartgrove from parking in the driveway on multiple occasions, but ceased blocking the disputed area after a discussion with Keith Hartgrove.

17. In 2002, the Halls moved to the third floor apartment, and Alice Sanford, the plaintiff’s mother, moved into the second floor apartment beginning in August 2002. At the latest, Alice Sanford resided at the Sanford-Harris Property and began to park in the disputed area by the end of September 2002. After Alice Sanford moved into the apartment, Johnson blocked her multiple times from parking in the disputed area. Johnson also put notes on Alice Sanford’s car when she had parked in the disputed area.

18. Keith Hartgrove moved out of the Sanford-Harris Property after Alice Sanford entered the property.

*****

“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng. Bros. Constr., Inc. V. Craney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng Bros., 643 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371 (1982), cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). Whether a fact is material or not is determined by substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648. “[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if [the moving party] demonstrates . . . that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991).

****

Adverse Possession

To establish title to land by adverse possession, one must demonstrate non-permissive use which is actual, open, notorious, exclusive, and adverse for a period of twenty years. Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2006). The burden of proof rests on the claimant, and extends to all the necessary elements of possession. Holmes v. Johnson, 324 Mass. 450 , 453 (1949). “The nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purpose for which it is adapted, and the uses to which is has been put.” LaChance v. First Nat’l Bank & Trust Co., 301 Mass. 488 , 490 (1938). “A person claiming title by adverse possession need not personally occupy the land for twenty years. He may rely on the possession of his tenants, whose possession is his own.” Lawrence v. Town of Concord, 439 Mass. 416 , 426 (2003).

After hearing the argument of counsel, considering the papers filed by both parties, and reviewing the facts presented in the Rule 56 record in the light most unfavorable to the moving party, the court concludes that as a matter of law the plaintiff has no expectation of proving a required element of her adverse possession claim. See Kourouvacilis, 410 Mass. 716 .

The defendant introduced evidence, unrebutted by the plaintiff, that the plaintiff has not excluded all parties, other than herself and her tenants, from using the disputed area during the period from November 1982 until November 2002. Exclusive “use must encompass a ‘disseisin’ of the record owner. And this means exclusion not only of that owner but of all third persons to the extent that the owner would have excluded them.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993) (holding that concurrent use of property prevented a finding of exclusive use and was fatal to the adverse possession claim); accord Blaustein v. Marmo, 14 LCR 509 , 512 (2006) (Misc. 303407) (Lombardi, J.).

The record shows that individuals other than residents of the Sanford-Harris Property both parked in the disputed area and prevented Sanford-Harris’ tenants from parking there. For example, Johnson also asserts that he parked continuously in the disputed area for two months after the death of Edward Hartgrove in 1998 or 1999. In his deposition, Keith Hartgrove stated that in 1999, Johnson prevented Hartgrove from parking in the disputed spot by blocking his access to it. Eugene Wright, a neighborhood resident for fifty years who lives within sight of the disputed area, described Johnson parking repeatedly in the disputed spot, starting in the winter of 2001 to 2002, with no competition from the owner and tenants of the Sanford-Harris Property. Wright stated in his deposition that Johnson consistently used the disputed area, and obstructed access to the disputed area by others, preventing tenants of the Sanford-Harris Property from parking there before and after Alice Sanford moved into the apartment in September 2002.

Sanford-Harris has not rebutted the statements in the Wright or Johnson depositions. Indeed, she concedes that she does not have consistent first hand knowledge of day to day events, and that she knew from tenants that Johnson blocked access to the disputed area to permit him to make use of it himself. Sanford-Harris stated in her deposition that Johnson sometimes parked on the right or “in the center” of the driveway. While parking in the center does not occupy all of the disputed area, Sanford-Harris admits that, given the tight quarters involved, parking in the center blocks other parties from parking in the disputed area. When Sanford-Harris learned that Johnson was parking the driveway, she admits that she took no action to remove him from the parking spot. Her claimed use of the driveway involved entering the disputed area when it was empty, rather than requiring that those who were occupying the disputed space, including Johnson, a neighbor who lived in neither of the parties’ properties, to vacate the spot so that she or her tenants could park.

The disputed part of this driveway between the parties’ houses was not fenced or marked off, and certainly was not kept inaccessible to use by the record owners, the record owners’ tenants, or even unrelated parties. Driveways, particularly those in densely settled urban areas such as this one, by their nature are used by their owners for a specific set of activities. Those who engage in these activities within the driveway area publically demonstrate use and possession of the driveway by using it in the way that it would be used by the lawful owner. In the setting involved here, an owner (or the owner’s designee) uses the scarce, valuable off-street driveway for parking his or her vehicles whenever the owner (or owner’s designee), wants to park. According to the record, Sanford-Harris’ tenants certainly may have used the disputed area at times when it became available, may have done so for more than twenty years, and may have done so during the period when Johnson or other third parties also were parking in the same area but happened not to be at a given hour. But the record, even considered in the light most favorable to the plaintiff, the party opposing summary judgment, does not support the reasonable inference that Sanford-Harris and her tenants made exclusive use of the disputed portion of the driveway in a continuous way for anything approaching twenty years. The opportunistic use that she and her tenants made, using the spot on those occasions when it was not used, occupied or controlled by others, including the defendant and unrelated third parties, is not sufficient to demonstrate “such control and dominion over the premises as to be readily considered arts similar to those which are usually and ordinarily associated with ownership.” LaChance v. First Nat’l Bank & Trust Co., 301 Mass. 448 , 491 (1938). Exclusive use would require far more than even the most indulgent view of the record shows happened here. To constitute exclusive use, there must have been, under these circumstances, barring of entry by other users, and taking affirmative steps to prevent unauthorized users from parking in the disputed area. Even with all reasonable inferences tilted in favor of the non-moving party, the record demonstrates that Sanford-Harris does not have a reasonable expectation of showing the requisite degree of control and exclusive use of the disputed area to prevail on her adverse possession claim. Horsley is entitled to an award of partial summary judgment as to so much of Sanford-Harris’ claims as assert her right to own the disputed strip by adverse possession.

Prescriptive Easement

A prescriptive easement develops from “uninterrupted, open, notorious and adverse use for twenty years.” Ryans v. Stavros, 348 Mass. 251 , 263 (1964). See G. L. c. 187, § 2. The burden of proving each element of the claim rests on the claimant seeking to establish the easement by prescription. See Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964).

“An easement is by definition a limited, nonpossessory interest in realty.” M. P. M. Builders, L. L. C. v. Dwyer, 442 Mass. 87 , 92 (2004). A person claiming a prescriptive easement may “rely on the possession of his tenants, whose possession is his own.” Lawrence v. Town of Concord, 439 Mass. 416 , 426 (2003) (holding that occupation of land described in lease to the tenant of the adverse possessor resulted in constructive occupation by the claimant). See also Shoer v. Daffe, 337 Mass. 420 , 423-424 (1958). “Where a landlord attempts to tack his tenant’s use with his own, the landlord must show that he authorized the tenant, in terms of the tenancy, to use the disputed area.” Boothroyd v. Bogartz, 13 LCR 391 , 394 (2005) (Misc. 283328) (Sands, J.) rev’d on other grounds, 68 Mass. App. Ct. 40 (2007). See also Elwell v. Barbrick, 279 Mass. 272 , 277 (1932).

The plaintiff relies on her own parking in the disputed area from 1982 to 1986, and on use by her tenants from 1986 to 2002, to satisfy the twenty-year use requirement. The record shows that the tenants may have parked in the disputed area at varying frequencies, from once a month to “constantly.” The plaintiff asserts that the aggregate result is continuous, uninterrupted use of the disputed area for at least twenty years. The defendant, on the other hand, points to evidence that Johnson parked in the disputed area with permission from Loretta Foster, then owner of the Horsley Property, for at least six months and possibly a year, prior to November 2002, thereby interrupting the plaintiff’s period of possession.

Sanford-Harris did not use the disputed property herself for anywhere near the requisite time period. She carries the burden of proving that her tenants were using the property as her agents, to be able on that basis to employ their use as tantamount to her own, to support her claim. A single year lease from Sanford-Harris to Michael Bishop has been entered into the record. This lease shows that the lease’s provision that there was “no parking provided” had been stricken from the lease at some point. The plaintiff asserts that this change to the lease form signals her intention that tenants receive, under lease from her, a right to park in the disputed area. There is much more that would be needed to prove that contention, but an inference to that effect is not entirely unreasonable on this record. This lease covers but one tenant and a small portion of the relevant time period. The record is silent as to whether or not other leases, to the extent there were other written leases, explicitly include or exclude parking from the rights assigned to Sanford-Harris’ other tenants. Even though the only lease in the record is vague on the point, and there are no other tenants with express written authorizations from Sanford-Harris to park in the disputed part of the driveway, she would not lose on this ground her prescription claim--if she could prove that when she rented apartments to tenants, the demised premises included the right to park in the driveway. If the record showed that it was impossible to use the leased premises (the apartment) without making use of the driveway, there would be a strong inference that that right to park had been included in the lease. But the claimant’s burden on this score is a fairly heavy one. It might be met if the facts show that “[t]he use of the [leased property] . . . has been able to take place only because of the use of the disputed parcel . . . ” Weiner v. Southampton Holdings, 14 LCR 568 , 570 (2006) (Misc. 279730) (Piper, J.). When the right to use a disputed parcel is not implied by the lease, or explicitly granted by the lessor in the lease, “possession of the tenant beyond the boundaries of [the area designated in the lease] cannot be considered to be the possession of the [lessor].” Holmes v. Johnson, 324 Mass. 450 , 454 (1949). But that is not an obvious fact on this record; the apartments Sanford-Harris rented out might or might not have been provided along with parking rights in the driveway, but there was nothing about the “lay of the land” that required the tenants of the apartments to make use of the driveway. To the contrary, the record shows that some of the plaintiff’s tenants never used the driveway.

To rely on the tenants’ use, Sanford-Harris must show that they were using the disputed area with her permission, at her direction, or on her behalf. That is not an implausible result, one which might be proved at trial, on this record. Sanford-Harris asserts under oath that she gave tenants permission to park in the disputed area. The facts do not fully show this not to have been the case. There thus is a material issue of fact on this question which stands in the way of summary judgment on Sanford-Harris’ claim to have acquired a prescriptive easement, benefitting her record holding, over the nearest part of the driveway.

The record also shows, as above discussed, that there were some times when others, unrelated to the Sanford-Harris property, parked in the disputed space. That use of the claimed area by others is, as the court has ruled, fatal to the plaintiff’s adverse possession claim, which requires exclusive dominion over the area by her or those acting on her behalf. There is no requirement of exclusivity, however, where the claim is not for fee title by adverse possession, but instead for an easement by prescriptive use. The parking by third parties which did in fact take place did, as matter of law, make the plaintiff’s use of the driveway non-exclusive. The harder question, on this plump summary judgment record, is whether the third party parking was frequent and regular enough to make the use of the driveway by plaintiff less than continuous. There is a good chance that the third party parking had this effect, and defeats the prescription claim. But where the right claimed is to park at certain times in a driveway, from which vehicles come and go, the question whether that use was rendered less than continuous--by parking at times in the same space by someone else–is a fact-intensive question, and one which does not lend itself to resolution on summary judgment.

Based on the record at summary judgment, the court can not grant summary judgment to either party on the prescriptive easement claim because questions of material fact exist. These questions include, but are not necessarily limited to:

1) Whether Sanford-Harris’ tenants were authorized to act as her agents, so that their use of the disputed area accrued to her period of possession; or whether the tenants used the disputed area independently, without authorization from Sanford-Harris, resulting in use that can not be relied upon by Sanford-Harris.

2) Whether Sanford-Harris’ use of the disputed area was continuous throughout the statutory period, or whether the title holder, or others (with or without direction from the title holder), interrupted her continuity of possession sufficiently to cut off the running of the required period of continuous use.

These questions prevent the court from granting summary judgment to the defendant on this record on Sanford-Harris’ prescriptive easement claim. The full extent of the facts on this point will be determined at trial. Accordingly, it is

ORDERED that, as to the plaintiff’s claim of adverse possession of the disputed area, the defendant’s motion for summary judgment is GRANTED. The judgment to enter in this case will declare that the defendant, Phyllis B. Horsley, holds record title to the disputed area free of fee ownership rights of the plaintiff. It is further

ORDERED that, as to the plaintiff’s claim for judicial recognition of an easement, acquired by prescription, in and to the disputed area, the defendant’s motion for summary judgment is DENIED. There are triable issues of fact material to whether or not the plaintiff has established the required elements of a prescriptive easement. It is further

ORDERED that the parties by their counsel promptly are to confer, and, within thirty days of the date of this Order, are to file with the court a joint written report detailing their collective or respective views on their readiness for trial.

So Ordered.

By the Court. (Piper, J.).