NORA, LLC vs. JOAN I. GELCH, 1236 BEACON STREET LIMITED PARTNERSHIP, SYROOS SANIEOFF, TRUSTEE OF THE ST. PAUL STREET REALTY TRUST, RITA BARTH, TRUSTEE OF THE 182 ST. PAUL STREET REALTY TRUST, and LILLIAN M. LEE, TRUSTEE OF THE LILLIAN M. LEE IRREVOCABLE TRUST

Plaintiff filed its verified Complaint on February 22, 2006, involving a dispute over rights in a passageway (the “Easement”) located off St. Paul Street in Brookline, Massachusetts, and alleging that the actions of Defendants Joan I. Gelch (“Gelch”), Syroos Sanieoff, Trustee of St. Paul Street Realty Trust (“Sanieoff”), Rita Barth, Trustee of 182 St. Paul Street Realty Trust (“Barth”), 1236 Beacon Street Limited Partnership (“1236 LP”) (together, “Defendants”), and Lillian M. Lee, Trustee of Lillian M. Lee Irrevocable Trust (“Lee”), in parking on the Easement violate the Easement and constitute a trespass and a nuisance by Defendants. [Note 1] Plaintiff also filed a Motion for Preliminary Injunction, seeking to prohibit Defendants’ parking in the Easement, which this court (Lombardi, J.) denied on March 6, 2006. Gelch, Sanieoff, and Barth filed an Answer and Counterclaim on March 17, 2006, alleging prescriptive rights for parking and proposing a new location of the Easement, and Plaintiff filed its Answer to Counterclaim on March 20, 2006. A case management conference was held on May 10, 2006. 1236 LP filed an Answer and Counterclaim on May 29, 2007, also alleging prescriptive rights for parking and proposing a new location of the Easement, and Plaintiff filed its Answer to Counterclaim on May 24, 2007.

On August 22, 2007, Gelch, Sanieoff, and Barth filed their Motion for Summary Judgment on all counts of the Complaint and the Counterclaim, and for Attorney’s Fees Pursuant to G. L. c. 231, § 6F, together with Affidavits of Gelch, Sanieoff, and Barth. On the same day 1236 LP filed its Motion for Summary Judgment, together with Affidavit of Arthur Rigor da Eva, Jr. (general partner of 1236 LP). Plaintiff filed its Opposition on September 28, 2007, together with Affidavits of Anwar Faisal (“Faisal”) (manager of Plaintiff) and William V. Hovey, Esq. (expert). Such motions were denied by this court (Lombardi, J.) on October 4, 2007. On October 5, 2007, Count II of the Complaint (nuisance) was dismissed pursuant to Mass. R. Civ. P. 12(h)(3).

Gelch, Sanieoff, and Barth filed an Amended Counterclaim on March 5, 2008, alleging the right to relocate the Easement as well as prescriptive parking rights on the Easement, and Plaintiff filed its Answer to Amended Counterclaim on March 10, 2008. [Note 2] Gelch, Sanieoff, and Barth filed a second Motion for Summary Judgment on July 7, 2008, together with supporting memorandum, Concise Statement of Material Facts, and Supplemental Appendix. [Note 3] On July 9, 2008, Plaintiff filed an Opposition, together with supporting memorandum, Appendix, and Affidavit of Faisal. A hearing was held on Gelch, Sanieoff, and Barth’s Motion for Summary Judgment on November 26, 2008, at which time such motion was taken under advisement. [Note 4]

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). In this court’s review of the materials accompanying a motion for summary judgment, “the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.” Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982) (quoting Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970)).

This court finds that the following facts are not in dispute:

1. Plaintiff is the owner of property containing a multi-unit dwelling located at 1232 Beacon Street, Brookline, Massachusetts by deed dated August 15, 2005.

2. Gelch is the owner of property containing a multi-unit dwelling located at 1240 Beacon Street, Brookline, Massachusetts. [Note 5]

3. 1236 LP is the owner of property containing a multi-unit dwelling located at 1236 Beacon Street, Brookline, Massachusetts by deed dated June 5, 1992.

4. Sanieoff is the owner of property containing a multi-unit dwelling located at 180 St. Paul Street, Brookline, Massachusetts by deed dated February 27, 1993. [Note 6]

5. Barth is the owner of property containing a multi-unit dwelling located at 182 St. Paul Street, Brookline, Massachusetts by deed dated May 8, 1997. [Note 7]

6. Lee is the owner of property containing a multi-unit dwelling located at 184 St. Paul Street, Brookline, Massachusetts by deed dated March 6, 1992. [Note 8]

7. Plaintiff’s and Defendants’ properties are contiguous to each other.

8. In the deed from Albert M. Beers and Ethel Beers to Frank P. Daughaday (a predecessor of Plaintiff) dated May 11, 1915 (the “1915 Deed”), rights in the Easement were granted, [Note 9] as follows:

Together with the right to use in common with others entitled thereto, for all purposes for which passageways are commonly used in the Town of Brookline all the passageways shown on said plan [“Plan of Land in Brookline, Mass. for F. E. Johnston, Esq.” dated February 19, 1910, and recorded with Norfolk County Deeds Plan Book 54, Plan 2593 (the “1910 Plan”)], by which access is had to the granted premises from St. Paul Street and especially the right to use as aforesaid the eight (8) foot passageway in the rear of the granted premises as shown on said plan, the part marked passageway in the rear of lot F. shown on said plan, and the ten foot passageway running across the rear of lots A. B. and C on said plan and over the northerly boundary of said lot A.

9. As shown on the 1910 Plan the Easement has three components: (1) a ten-foot wide section running from St. Paul Street along the northerly and westerly boundary of the Lee property, the westerly boundary of the Barth property, and the westerly boundary of the Sanieoff property (“Section A”); (2) an eight-foot wide section running from Section C, as hereinafter defined, between the Sanieoff property and Plaintiff’s property (“Section B”); and (3) a triangular section approximately 50 feet by 44 feet by 60 feet at the rear of the Gelch property, connecting to both Section A and Section B (“Section C”). [Note 10]

10. The deed into Sanieoff defines rights in Section A as “for all purposes for which passageways are commonly used in the Town of Brookline,” and established Section C as “a turnabout for the benefit of all the lots [that] ehve [sic] the right to use said passageway.” The deed into Lee provides rights in Section A “for all purposes for which passageways are commonly used in the town of Brookline,” and rights in Section C for “the right to use the irregularly shaped area at the rea [sic] of lot ‘F’ marked ‘Passage’ on said plan as a turnout and subject to the rights of owners of other lots on said plan to sue [sic] said turnout . . . .”

11. Defendants, their tenants, and/or third-parties with Defendants’ consent have used a portion of the Easement to park automobiles and/or for the placement of trash receptacles. [Note 11]

12. Plaintiff parks two vehicles at the rear of Plaintiff’s property. In order to exit from Plaintiff’s property, its vehicles must back down Section B and into Section C before driving out on Section A.

13. A new plan titled “Easement Plan of Land” dated January 8, 2008 (the “2008 Plan”), was prepared by Daylor Consulting Group, Inc. for Barth. The 2008 Plan shows the Easement modified as follows: Section A remains the same on the Lee property, but moves approximately ten feet internally (to the southwest) across the Barth property and the Sanieoff property, still retaining its ten foot width; Section B remains essentially the same; and Section C is substantially reduced in size to a ten-foot wide passageway.

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In the pending motion for summary judgment, Defendants argue that they have a right to park on and relocate the Easement. Plaintiff asserts that Defendants’ use of the Easement for parking is prohibited and constitutes trespass and objects to Defendants’ proposed relocation of the Easement. I shall look at each of these issues in turn.

Deeded Use of Easement for Parking.

Whereas Defendants argue that the major issue before this court is their right to relocate the Easement, Plaintiff asserts that the first question in the case at bar is not the relocation of the Easement, but, rather, whether Defendants have the right to park in the Easement, irrespective of its location. [Note 12] In support of its argument that parking is not a right that is consistent with the Easement, Plaintiff looks to the 1915 Deed, which granted Plaintiff’s predecessor the right to use the Easement “for all purposes for which passageways are commonly used in the Town of Brookline.” [Note 13] The Easement grants Plaintiff’s property (here, the dominant estate) certain rights of access over Defendants’ properties (the servient estates), and “[t]he owner of a servient estate may make such use of his land as is consistent with the easement of another.” Highland Club of W. Roxbury v. John Hancock Mut. Life Ins. Co., 327 Mass. 711 , 714 (1951). However, “the corollary of that rule is that [servient owners] may not use [their] land in a manner inconsistent with the easement.” Id. at 715. In other words, “[t]he owner of the servient estate may not use the property subject to the easement in a way that would lead to a material increase in the cost or inconvenience to the easement holder’s exercise of his rights. An interference with an easement holder’s use of the land amounts to an infringement of a valuable property interest.” Texon, Inc. v. Holyoke Mach. Co., 8 Mass. App. Ct. 363 , 366 (1979). The summary judgment record indicates that, to some undetermined extent, Defendants (including their tenants and third-parties with Defendants’ consent) park vehicles on the Easement. While Defendants claim that such use of the Easement does not interfere with access to Plaintiff’s property, Plaintiff asserts otherwise. Because there are disputed facts with respect to the Easement’s use and Plaintiffs’ inconvenience, as discussed infra, this court cannot make a finding on whether Plaintiff’s rights are materially infringed upon.

Relocation of Easement.

Defendants argue that the relocation of the Easement, as shown in the 2008 Plan, meets the requirements of M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004), for purposes of making changes in the location of the Easement without the consent of Plaintiff. M.P.M. Builders adopts the Restatement provisions that unilateral changes to an easement, while allowed, cannot “(a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment; or (c) frustrate the purpose for which the easement was created.” Id. at 90. Defendants acknowledge that the Easement’s sole purpose is to provide the parties access to the rear of their respective properties from St. Paul Street, and argue in their summary judgment memorandum that they have the right to relocate the Easement “so long as Nora continues to enjoy unimpeded access to its property.” Defendants reason that the modified Easement provides sufficient access for Plaintiff and that the Restatement acknowledges that a relocation of an easement can result in a change in size. [Note 14]

In its Opposition to Defendants’ summary judgment memorandum, Plaintiff’s objection to Defendants’ use of the Easement was limited to challenging Defendants’ use of Parcel C for parking. In fact, in their Opposition, Plaintiff states that it “does not quarrel with the defendants’ attempt to move the Easement as shown on [the 2008 Plan], but strongly opposes the concept that the plaintiff be given only a ten (10) foot area in [Section C] to maneuver.” Plaintiff’s objection was expanded at oral argument, where Plaintiff questioned Defendants’ use of all sections of the Easement. Defendants assert that the Easement has been used for parking since 1948, but claim that despite such use, Plaintiff has unobstructed access to Plaintiff’s property. Such testimony leads this court to the reasonable inference that Plaintiff has historically accessed Plaintiff’s property via a general path adjacent to, but not on, Section A. [Note 15] However, the record fails to detail the extent to which Defendants park on their respective properties and the Easement, as well as the exact path that Plaintiff has used to gain access to its property when the Easement is obstructed. In addition, with reference to photographs in the summary judgment record, Faisal alleges that parking by some Defendants in the Easement is in tandem, and that in the winter Defendants shovel snow into the Easement for purposes of digging out their parking spaces, all further impeding access on the Easement. Moreover, Faisal’s Affidavit directly disputes the Defendants’ Affidavit with respect to accessing Plaintiff’s property and, thus, this court cannot make a finding that the relocated Section A passes muster under M.P.M. Builders. [Note 16] That said, if Defendants do not park on, store garbage bins on, or pile snow on any portion of Section A and Section B of the relocated Easement, or if they do utilize such area in such a way that Plaintiff’s access is unimpeded, then it is difficult to see how the requirements of M.P.M. Builders would not be met with respect to Section A or Section B.

With respect to access over Section C and parking on Plaintiff’s property, the Affidavit of Faisal states that it is difficult for Plaintiff to park on Plaintiff’s property if cars are parked in Section C because it cannot maneuver within Section C for ingress and egress. [Note 17] Plaintiff also argues that Defendants have substantially and unreasonably decreased the size of Section C. [Note 18] In light of the summary judgment record before this court, and drawing inferences in light of the opposing party, this court cannot determine whether the relocated Section C satisfies the requirements of M.P.M. Builders.

Trespass.

Plaintiff argues that Defendants are guilty of trespass because they park in the Easement and prevent Plaintiff’s use of the Easement. A trespasser is one who “enters or remains upon land in the possession of another without a privilege to do so, created by the possessor’s consent or otherwise.” Gage v. Westfield, 26 Mass. App. Ct. 681 , 695 n.8 (1988). Defendants argue that none of the parking occurs on Plaintiff’s property, but only on the properties of the respective Defendants. As a result, they argue, Plaintiff merely has the right to use the Easement for access, does not have a possessory interest in any of Defendants’ properties, and cannot bring an action in trespass. Moreover, they argue that such access has not been impaired, as discussed, supra.

Defendants’ technical distinction between an easement right (a nonpossessory interest) and a trespass claim (aimed to protect possessory rights) does not insulate them from interfering with Plaintiff’s use of the Easement in a manner that materially increases “the cost or inconvenience” to Plaintiff. See Texon, 8 Mass. App. Ct. at 366. All parties agree that Plaintiff has the right to use the Easement to access Plaintiff’s property. It follows that Plaintiff has recourse if its rights in the Easement are unreasonably impeded upon. However, the record implies that Defendants used the Easement with Plaintiff’s permission, as discussed, infra. If Plaintiff previously consented to such use, it cannot now claim that Defendants trespassed on the Easement. Until this court is able to rule on the issues of the Easement’s use and consent, any ruling on Defendants’ interference with the Easement would be premature.

Prescriptive rights of parking.

The issue of prescriptive rights for parking is not before this court on summary judgment. However, to succeed in such a claim Defendants will have to show “‘open, uninterrupted and adverse [use] for a period of not less than twenty years’ by the claimant and his predecessors in title.” Garrity v. Sherin, 346 Mass. 180 , 182 ((1963) (citing Tucker v. Poch, 321 Mass. 321 , 323 (1947)). Barth, Gelch, and Sanieoff all state in their Affidavits, as supported by 1236 LP, that parking in the Easement was made “with the full knowledge and approval of plaintiff’s predecessor in title.” Such statement is particularly noteworthy in context of a prescriptive rights claim as Defendants acknowledge that Plaintiff consented to the parking. Thus, the limited summary judgment record before this court supports a conclusion that Defendants’ parking in the Easement was not adverse. See Totman v. Malloy, 431 Mass. 143 , 145 (2000) (“The essence of nonpermissive use is lack of consent from the true owner.”).

In light of the foregoing, Defendants’ Motion for Summary Judgment is DENIED.

The parties shall attend a status conference on Tuesday, January 19, 2010, at 11:00 AM to determine the status of the remainder of this litigation. Judgment shall issue upon the resolution of all issues.

Alexander H. Sands, III

Justice

Dated: December 8, 2009