MARK E. SULLIVAN and MICHAEL G. SULLIVAN, both as TRUSTEES OF THE AVON STREET TRUST and 10 AVON ST, LLC v. LAURENCE S. TECCE, JR., and LAURA TECCE

On January 6, 2003, Mark E. Sullivan and Michael G. Sullivan, trustees, as owners of property known as 10-10A Avon Street, Wakefield (Plaintiffs’ Property), initiated this action by filing a Verified Complaint against their abutters, Laurence S. Tecce, Jr., and Laura Tecce, owners of property at 12 Avon Street, Wakefield (Defendants’ Property). In their Amended Verified Complaint, Plaintiffs seek a declaration that they have acquired title by adverse possession to a strip of land (Disputed Area) that forms a portion of the paved driveway that separates the parties’ properties. In the alternative, Plaintiffs ask the court to declare that they have acquired prescriptive rights to use the Disputed Area for parking vehicles. [Note 1] In support of their claims, Plaintiffs rely on the actions of those acting by, through, or under them between September 1981 and October 2002. Defendants’ counterclaim contains five counts, seeking declaratory relief opposite to that sought by Plaintiffs and also reimbursement for removal of a fence installed by Defendants along the parties’ record boundary line, and removed by Plaintiffs. On December 14, 2006, Defendants moved for summary judgment. The court (Lombardi, J.) held a hearing on February 15, 2007, at which all parties were heard, and issued an Order Denying Motion for Summary Judgment on March 27, 2007.

In denying Defendants’ motion, the court stated “[h]aving reviewed the evidence in the light most favorable to plaintiffs, this court finds that defendants have not demonstrated they can meet the Kourouvacilis standard.” See Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991). A two-day trial was held on February 2, 2009, and February 11, 2009. At trial this court heard the testimony of Karen Delano and Diane E. Scontras, former tenants of Plaintiffs; Plaintiffs Mark E. Sullivan and Michael G. Sullivan; Attorney Mark Curley; and Defendant Laurence S. Tecce, Jr. Thirty-six exhibits were entered in evidence, including a stipulation of facts. Both parties submitted post-trial briefs on April 21, 2009. Based on all the evidence and reasonable inferences drawn therefrom this court finds the following material facts:

1. In different capacities, Mark E. Sullivan has had a record interest in Plaintiffs’ Property since September 1, 1981, when he and Raymond P. Wheaton purchased Plaintiffs’ Property. That same day, Mark E. Sullivan and Raymond P. Wheaton conveyed Plaintiffs’ Property to themselves as trustees of the S & W Realty Trust, of which they were both trustees. [Note 2]

2. On January 18, 2001, Mark E. Sullivan and Raymond P. Wheaton’s widow, Edith Wheaton, conveyed Plaintiffs’ Property to Mark E. Sullivan and Michael G. Sullivan, trustees of the Avon Street Trust by deed recorded with Middlesex South Registry of Deeds in Book 35457, at Page 139. [Note 3]

3. Mark E. Sullivan and Michael G. Sullivan are Massachusetts residents, living in Rockport and Reading, respectively. As trustees, they were the record owners of Plaintiffs’ Property from January 18, 2001, until February 12, 2004. On February 12, 2004, they conveyed Plaintiffs’ Property to 10 Avon St, LLC, a Massachusetts Limited Liability Company. [Note 4]

4. Defendants Laurence S. Tecce, Jr., and Laura Tecce reside in North Andover. Since February 24, 2000, they have been the record owners of Defendants’ Property by deed recorded with said Deeds in Book 31160, at Page 178. When they bought Defendants’ Property, they did significant renovation work to the three residential units, which they rent.

5. The Disputed Area is an eight-foot wide strip of land as measured in a westerly direction from the right side of the building located on Plaintiffs’ Property. It

6. Prior to 2000, for the period relevant to this action, Defendants’ Property was owned by Vera D. Curley, and beginning in 1985, was managed by her son, Mark. Sometime between September 1981, and 1985, Mrs. Curley spoke with one of the then-owners of Plaintiffs’ Property and gave him permission for tenants living at Plaintiffs’ Property to park within the Disputed Area, as needed and when space was available. [Note 5] Mrs. Curley conveyed this information to her son Mark in 1985 when they were at the properties, discussing Mrs. Curley’s ownership of Defendants’ Property, and the cars that were parked in the Disputed Area.

7. This permission between neighbors was never withdrawn by Mrs. Curley.

8. Plaintiffs’ Property is a four-unit residential building located on a residential street in the center of Wakefield. Two units are located on the right side of the building and two units are located on the left side of the building.

9. Wakefield has an on-street overnight parking ban between one a.m., and seven a.m. that has been in effect since 1961. Testimony regarding the ban varied among the witnesses, but it appears that the ban has been consistently enforced between November and April.

10. From September 1981, to October 2002 (Adverse Possession Period), the “right-side” tenants of Plaintiffs’ Property parked exclusively within the Disputed Area between November and April. Between May and October during the Adverse Possession Period, the “right-side” tenants of Plaintiffs’ Property parked in the Disputed Area when street parking was unavailable. Mark E. Sullivan told his tenants that they needed to cooperate with one another and exchange keys so that they could move each other’s cars around, as the parking was tandem.

11. In his capacity as property manager of Plaintiffs’ Property, Mark E. Sullivan cleared the Disputed Area with a leaf blower during the Adverse Possession Period. In addition, during the winter months of the Adverse Possession Period he removed snow from the Disputed Area and applied sand and rock salt when necessary. [Note 6]

12. From 1981 to 1985, Plaintiffs renovated one apartment per year and fully landscaped Plaintiffs’ Property. During this time, Plaintiffs used the Disputed Area to park supply trucks, load trucks with debris, store piles of mulch and loam, and store a Bobcat and various landscaping materials from time to time.

13. In 1983, 1988, 1989, 1993, and 1994, Plaintiffs repainted the building on Plaintiffs’ Property. During the repainting periods, the Disputed Area was used for staging.

14. In 1990, Plaintiffs rebuilt the rear wall of the building on Plaintiffs’ Property. During this time, Plaintiffs used the Disputed Area to park supply trucks and to load trucks with debris.

15. In 1992, Plaintiffs installed new heating systems in the building and the Disputed Area was used to park supply trucks and to load debris into a truck. Also in 1992, the basement on Plaintiffs’ Property was cleared out and waterproofed and storage bins were installed. During this time, the Disputed Area was to used to park supply trucks and trucks that were used to haul away debris.

16. In 2002, the upstairs apartment on the right side of Plaintiffs’ building was renovated and the attic was incorporated into the apartment below. During that time, a boom truck was parked in the Disputed Area to load supplies directly into the apartment, supply trucks parked in the Disputed Area, and trucks were parked in the Disputed Area to haul away debris from the renovation. Additionally, a 10’ by 30’ dumpster was parked in the Disputed Area for seven to eight weeks.

17. Defendants have paid taxes on the Disputed Area since becoming the record owners of Defendants’ Property. They also used the Disputed Area to park vehicles and stage work during 2000 and 2001, when they were doing significant repairs to the building on Defendants’ Property.

18. In October of 2002, Defendant Laurence S. Tecce, Jr. demanded that Plaintiffs pay him rent for their tenants’ parking use of the Disputed Area. When Plaintiffs refused, Defendants erected a fence blocking Plaintiffs’ tenants’ access to the Disputed Area at a cost to Defendants of $750. In November of 2002, Plaintiffs removed that fence.

* * * * * *

It is well-settled that “[t]itle 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) (emphasis added). “Acquisition of title through adverse possession is a fact . . . to be proved by the one asserting the title. The burden of proof extends to all of the necessary elements of such possession . . . .” Holmes v. Johnson, 324 Mass. 450 , 453 (1949) (internal citations omitted). Further, “[u]nder G. L. c. 187, Section 2, one may acquire a prescriptive easement upon the land of another by use of that land in a manner which is open, notorious, adverse to the owner, and continuous for a period of at least twenty years.” Boston Seaman's Friend Soc'y v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 (1985) (citing Tucker v. Poch, 321 Mass. 321 , 323 (1947); Ryan, 348 Mass. at 263). “If any of these elements is left in doubt, the claimant cannot prevail [on either claim of ownership].” Mendonca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323 , 326 (1968). The elements for prescriptive easements are the same as adverse possession with the exception of exclusivity. See Ryan, 348 Mass. at 263.

Based on the testimony of Mark Curley, this court has found that sometime between 1981 and 1985, Mrs. Curley, owner of Defendants’ Property, gave permission to allow Plaintiffs’ tenants to park within the Disputed Area if there was available space. There is no evidence that Mrs. Curley ever withdrew her permission. “[A] use that commences with permission is presumed to continue with permission,” absent proof to the contrary. Begg v. Ganson, 34 Mass. App. Ct. 217 , 219 (1993). Since Plaintiffs have failed to establish that their and their tenants’ use of the Disputed Area was adverse (non-permissive), it is not necessary to put the actual acts of dominion under a microscope to determine if they are sufficient to establish the other elements necessary to Plaintiffs’ claims of either adverse possession or prescription. [Note 7] Given that Plaintiffs’ Adverse Possession Period runs from September 1981, when Mark E. Sullivan first became a record owner of Plaintiffs’ Property, through October 2002, Plaintiffs cannot establish continuous non-permissive use for the necessary prescriptive period. As a result, Plaintiffs have not met their burden on all elements of their claims of either adverse possession or prescription.

Defendants have proven their counterclaim for damages in the amount of $750.00.

Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: August 25, 2009