MISC 08-367899

March 4, 2010

Sands, J.


Plaintiffs Adell Banks (“Adell”) and Denice Banks (“Denice”) filed their Verified Complaint on January 22, 2008, asserting a claim for adverse possession with respect to a portion of property (the “Disputed Area”) owned by Defendant Nathan Sinai and located at 368 Winchester Street in Newton, Massachusetts (“Defendant Property”), and alleging nuisance, waste and trespass, and negligent trespass. [Note 1] Defendant filed his Answer and Counterclaim on March 17, 2008, alleging trespass by Plaintiffs on a separate portion of Defendant Property. A case management conference was held on April 14, 2008, at which Plaintiffs filed their Answer to Counterclaim. On August 22, 2008, Plaintiffs filed a Motion to Dismiss Counterclaims and a Motion for Preliminary Injunction. The Motion for Preliminary Injunction was settled by the parties on September 16, 2008, by the filing of an Agreement for Preliminary Injunction which prohibited both Plaintiffs and Defendant from changing the Disputed Area but allowed Defendant to perform basic maintenance. On the same date Plaintiffs’ Motion to Dismiss Counterclaims was allowed.

On July 30, 2009, Plaintiffs filed their Motion for Summary Judgment, together with supporting memorandum, Appendix, and Affidavits of Adell Banks, Denice Banks, Jennifer Banks Pina, Milton Schwartzberg, and Stanley R. Dillis. Defendant filed his Opposition to the summary judgment motion, together with supporting memorandum and Affidavits of Nathan Sinai, Alan B. Sharaf, and Supplemental Affidavit of Nathan Sinai on August 25, 2009. On September 10, 2009, Plaintiffs filed their Reply Brief. Plaintiffs filed their Motion to Strike Defendant’s Affidavit on January 27, 2010, and Defendant filed his Opposition to such motion on January 29, 2010. A hearing was held on both motions on February 16, 2010, at which time both motions were taken under advisement.

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)).

The following material facts are not at issue:

1. Adell and Leonard Banks (husband and wife as tenants by the entirety) purchased property located at 374 Winchester Street, Newton (“Plaintiff Property”) by deed dated February 16, 1971, and recorded with the Middlesex South District Registry of Deeds (the “Registry”) at Book 12025, Page 529. Adell deeded Plaintiff Property to herself and Denice (her daughter) as joint tenants by deed dated April 19, 1989, and recorded with the Registry at Book 19766, Page 443. [Note 2] Adell and Denice have lived at Plaintiff Property from 1971 to the present time.

2. Milton Schwartzberg (“Schwartzberg”) and Sharan Schwartzberg, as tenants by the entirety, purchased Defendant Property by deed dated July 30, 1975, and recorded with the Registry at Book 12834, Page 695. Schwartzberg never used the Disputed Area. Defendant purchased Defendant Property by deed from Schwartzberg and Sharan Schwartzberg dated August 30, 1999, and recorded with the Registry at Book 30606, Page 262.

3. The Disputed Area is shown on plan titled “Existing Conditions Plan 374 Winchester Street, Newton, Massachusetts” dated November 15, 2007, and prepared by Ducharme & Dillis Civil Design Group, Inc. The Disputed Area is rectangular in shape (approximately fourteen feet by forty-five feet) and bounded by Winchester Street on the west, by Defendant’s driveway on the north, and by Plaintiffs’ driveway on the south. [Note 3]

4. From 1971 to at least 1999, Plaintiffs’ use of the Disputed Area included the following: (1) they cleared the Disputed Area by removing trash, brush, and other debris; (2) they raked the grass and removed leaves; (3) they planted, watered, and mowed grass; (4) they planted, pruned, watered, and maintained flowers; (5) they placed decorative rocks; (6) they used the Disputed Area for recreational purposes; (7) their children and grandchildren used the Disputed Area for play; (8) they pruned trees in the Disputed Area; (9) they removed a berry tree; (10) they plowed the driveway on Plaintiff Property and dumped snow onto the Disputed Area; and (11) they replaced the fence surrounding Plaintiff Property in the mid 1970s and extended it into the Disputed Area. [Note 4]

5. From 1999 until 2007, Defendant parked a motor vehicle in the Disputed Area. [Note 5] Defendant has paid real estate taxes on the Disputed Area since he purchased Defendant Property in 1999.

6. On September 29, 2006, Plaintiffs paid an assessment of $723.30 to the City of Newton for the installation of granite curbing abutting the Disputed Area.

7. On July 14, 2008, Defendant began construction of a stone wall approximately 43 inches tall and 7 inches wide in the Disputed Area, pursuant to a building permit issued on July 9, 2008.


I. Plaintiffs’ Motion to Strike.

In their Motion to Strike the Affidavit of Defendant, Plaintiffs contend that the Affidavit contained statements that conflict with documents previously executed by Defendant (made at the time Defendant purchased Defendant Property) and was filed in bad faith. Specifically, Plaintiffs argue that Defendant’s Affidavit should be stricken (at least) because Defendant previously swore that he intended to occupy Defendant Property as his primary residence, whereas Defendant now claims to have purchased Defendant Property as an investment. Defendant claims that his Affidavit was provided in compliance with the Massachusetts Rules of Civil Procedure and such Affidavit creates a material dispute of fact.

While there may be conflicting statements in the Affidavit of Defendant executed in 2009 as compared to the closing mortgage documents executed by Defendant in 1999, such facts are not material to the issues presented in this adverse possession action. As such, this court shall not strike the Affidavit of Defendant, but, at the same time, does not rely on any of the statements, as such statements are irrelevant to the adverse possession issues. In light of the above, Plaintiffs’ Motion to Strike the Affidavit of Defendant is DENIED.

II. Adverse Possession.

As there is no dispute between the parties as to the fact that Defendant holds record title to the Disputed Area, the central issue in this case is whether Plaintiffs have obtained legal title to the Disputed Area by adverse possession. While Plaintiffs claim that the summary judgment record allows for a finding in their favor, Defendant argues that a trial is needed due to disputed material facts. [Note 6]

To establish title by adverse possession, Plaintiffs carry the burden to prove “nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Ryan v. Stavros, 348 Mass. 251 , 262 (1964). If any of the elements remain unproven, the party claiming adverse possession cannot prevail. Mendonca v. Cities Service Oil Co., 354 Mass. 323 , 326 (1968).

A. Continuous Use for Twenty Years.

There is no dispute that Plaintiffs used the Disputed Area for more than twenty years, from 1971 until at least 1999. Plaintiffs have submitted four affidavits in this regard, and Defendant has not submitted any opposing affidavits. As such, I find that Plaintiffs have satisfied their burden to show continuous use of the Disputed Area for at least twenty years.

B. Exclusive Use.

Exclusive use is established where it “encompass[es] a ‘disseisin’ of the record owner.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993). To establish exclusive use, the claimant must show that he used the disputed area to the “exclusion not only of [the record] owner but of all third persons to the extent that the owner would have excluded them.” Id. “Acts of enclosure or cultivation are evidence of exclusive possession.” Labounty v. Vickers, 352 Mass. 337 , 349 (1967). The record before this court indicates that the Disputed Area was used exclusively by Plaintiffs for at least twenty-eight years (from 1971 to 1999). Moreover, Defendant’s predecessor stated that he never used the Disputed Area from 1975 to 1999. As such, I find that Plaintiffs have satisfied their burden to show exclusive use of the Disputed Area.

C. Open and Notorious Use.

The open and notorious requirement “‘is intended only to secure to the owner [of the affected land] a fair chance of protecting’ his or her property interests.” Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007) (quoting Foot v. Bauman, 333 Mass. 214 , 218 (1955)). For a use to be found open, it “must be without attempted concealment.” Boothroyd, 68 Mass. App. Ct. at 44. The notorious requirement is met where the use is “sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property.” Id. In the case at bar, the summary judgment record shows that the Disputed Area abuts Winchester Street and is not hidden or obstructed by any natural or manmade structures. The Affidavit of Schwartzberg states that the Disputed Area is visible from the house on Defendant Property. Moreover, as the Disputed Area is adjacent to the driveway on Defendant Property, Defendant and his predecessors would observe the Disputed Area upon ingress and egress. As such, I find that Plaintiffs have satisfied their burden to show open and notorious use of the Disputed Area.

D. Adverse or Hostile Use.

“[P]ermissive use is inconsistent with adverse use.” Stavros, 348 Mass. at 262. “The essence of nonpermissive use is lack of consent from the true owner.” Totman, 431 Mass. at 145. “Whether a use is nonpermissive depends on many circum stances, including the character of the land, who benefited from the use of the land, the way the land was held and maintained, and the nature of the individual relationship between the parties claiming ownership.” Id. As such, Defendant could defeat Plaintiffs’ claim of adverse possession by introducing evidence into the record that shows that Defendant or his predecessors consented to Plaintiffs’ use of the Disputed Area. However, the summary judgment record is devoid of any evidence that there was permissive use of the Disputed Area by Plaintiffs. Additionally, Plaintiffs assert that they were never given permission to use the Disputed Area. As such, I find that Plaintiffs have satisfied their burden to show adverse use of the Disputed Area.

E. Actual Use.

In determining whether use is “actual,” in context of a claim of title by adverse possession, “[a] judge must examine the nature of the occupancy in relation to the character of the land.” Peck, 34 Mass. App. Ct. at 556 (citing Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992)). [Note 7] The adverse possessor’s acts should demonstrate “control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.” LaChance v. First Nat’l Bank & Trust Co., 301 Mass. 488 , 491 (1938). “[T]he nature and extent of occupancy required to establish a right by adverse possession vary with the character of the land, purposes for which land is adapted, and uses to which the land has been put.” Id. “Acts of possession which are few, intermittent and equivocal are insufficient to constitute adverse possession.” Sea Pines Condominium III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004).

In the case at bar, Plaintiffs provide three affidavits from family members and one from an abutter as to their use of the Disputed Area. As discussed, supra, these affidavits show open, notorious, continuous, exclusive, and adverse use of the Disputed Area for a period far in excess of twenty years. While Defendant has produced no affidavits in this regard, and does not question the use described by Plaintiffs over this period of time, Defendant asserts that the actual use made by Plaintiffs is not the type of use that qualifies for adverse possession.

Proving the extent of their use is where Plaintiffs’ fail to satisfy their summary judgment burden to show undisputed actual use of the Disputed Area. While Plaintiffs cite numerous uses of the Disputed Area which they made over a twenty-eight year period of time, none of the affidavits clarify the specific portion of the Disputed Area involved. The summary judgment record does not disclose the location of the grass within the Disputed Area, where the flowers were planted, where the decorative rocks were placed (or the size of the rocks), where the recreation by Plaintiffs (and their children and grandchildren) took place, where the pruned trees were located, or where the fence was located on the Disputed Area. In addition, there is no evidence to indicate where on the Disputed Area Plaintiffs’ driveway was widened. Moreover, as discussed, supra at note 4, there may be a material fact in dispute relative to the widening of the driveway onto the Disputed Area and the extent of the vegetation in the Disputed Area. As a result of the foregoing, this court is unable to determine the extent of Plaintiffs’ actual use of the Disputed Area. Thus, as requested by Defendant, a limited trial is necessary to clarify the issue of Plaintiffs’ actual use of the Disputed Area.

III. Laches.

Defendant also argues that Plaintiffs are guilty of laches, as they brought this action much later than the twenty year period required for an adverse possession claim. Plaintiffs claim that laches do not apply to the facts of this case and point out that Defendant waited for nine years after he purchased Defendant Property before he filed anything in court relative to his attempts to claim ownership of the Disputed Area.

The doctrine of laches is based on detrimental reliance by a party on the conduct of the other party. Laches is an “unjustified, unreasonable, and prejudicial delay in raising a claim.” Srebnick v. Lo-Law Transit Mgmt., Inc., 29 Mass. App. Ct. 45 , 49 (1990). “Laches is not mere delay but delay that works disadvantage to another.” Moseley v. Briggs Realty Co., 320 Mass. 278 , 283 (1946) (quoting Calkins v. Wire Hardware Co., 267 Mass. 52 , 69 (1925)). There can be no laches where “there is no knowledge of the wrong committed and no refusal to embrace opportunity to ascertain facts.” Id. at 284 (quoting Stewart v. Finkelstone, 206 Mass. 28 , 36 (1910)). See also Clark v. Boston-Continental Nat’l Bank, 9 F. Supp. 81, 88 (D. Mass. 1934) (“Laches involves an assumption that the party had knowledge of his rights, ample opportunity to enforce them, and a change of condition or relation during the period of delay”).

This court is unpersuaded by Defendant’s argument of laches, as Plaintiffs’ use of portions of the Disputed Area continued until the fall of 2007, when Plaintiffs claim that Defendant started opposing their use of the Disputed Area. Plaintiffs commenced this action in January of 2008. Such facts fail to support a finding of unjustified or unreasonable delay on the part of Plaintiffs. As such, I find that Plaintiffs’ claim of title to the Disputed Area by adverse possession is not barred by the doctrine of laches.

In light of the above, this court ALLOWS IN PART Plaintiffs’ Motion for Summary Judgment, consistent with this decision. Judgment shall issue upon the resolution of the extent of Plaintiffs’ “actual” use of the Disputed Area, to be determined at trial.

The parties shall attend a status conference on Friday, April 2, 2010, at 10:00 A.M. to schedule a pre-trial conference date.


[Note 1] On September 16, 2008, Plaintiffs filed an Amended Verified Complaint, which was allowed, alleging that Defendant committed an additional trespass by building a stone wall in the Disputed Area.

[Note 2] It is immaterial that the summary judgment record does not include the instrument by which Adell took title to Plaintiff Property as an individual, as the parties do not dispute their respective chains of title.

[Note 3] The summary judgment record is unclear as to the state of vegetation of the Disputed Area’s eastern boundary.

[Note 4] Plaintiffs also assert that they widened the driveway on Plaintiff Property into the Disputed Area. This claim was echoed in the Affidavit of Schwartzberg as well. However, the summary judgment record does not contain any description of the extent of the driveway into the Disputed Area. Moreover, Defendant’s Supplemental Affidavit states that “[t]here was no pavement on the alleged disputed area after 1999.” It is unclear whether this statement means that no further paving occurred after 1999, whether, when Defendant purchased Defendant Property in 1999, pavement did not exist within the Disputed Area, or whether Defendant removed any pavement upon his purchase of Defendant Property in 1999. In light of this ambiguity, I cannot find that the extent of the driveway on Plaintiff Property into the Disputed Area is undisputed.

Similarly, Plaintiffs contend that on September 20, 2007, Defendant “destroyed the vegetation on the Disputed Area, . . .” As Plaintiffs also claim to have planted grass and flowers on the Disputed Area, I infer Plaintiffs’ allegation to mean that Defendant destroyed the vegetation on the Disputed Area that Plaintiffs’ planted and cultivated. However, Defendant denies such statement of fact by Plaintiff and states that, after 1999, the Disputed Area was covered by patches of grass, “some naturally growing bushes and rocks.” When these two affirmations are viewed in light of the non-moving party, I cannot determine that the nature and extent of the vegetation on the Disputed Area is undisputed.

[Note 5] The summary judgment record indicates that both parties utilized the Disputed Area from 1999 to 2007. While Defendant claims to have parked a motor vehicle in the Disputed Area, Plaintiffs assert that they used the Disputed Area for the previously stated uses until September 2007.

[Note 6] During oral argument, Defendant claimed that Plaintiffs’ state of mind was relevant to this discussion; however, case law is clear that the parties’ intent is irrelevant. See e.g.,Totman v. Malloy, 431 Mass. 143 , 146 (2000) (“We have long held that the state of mind of a claimant is not relevant to a determination whether the possession of land is nonpermissive. . . . As we have stated, mental attitude is irrelevant where acts import an adverse character to the use of the land. . . . [T]he possessor’s actions and not his intent provide notice of nonpermissive use to the true owner.”) (internal quotations and citations omitted).

[Note 7] In Peck’s analysis of “actual use,” the Appeals Court noted that the uses in question (including putting a picnic table, lounge chairs, a swing, a sandbox, and clotheslines on the disputed lot) “made no permanent improvements on the lot, . . .” and that such use was neither attached to the land or a significant change to the land itself. Peck, 34 Mass. App. Ct. at 556.

This rationale is consistent with established case law, where the construction of permanent structures or the completion of significant improvements were central to a finding of adverse possession. See, e.g., Collins v. Cabral, 348 Mass. 797 , 798 (1965) (finding adverse possession where party performed lawn maintenance and installed septic tank); Jones v. Gingras, 3 Mass. App. Ct. 393 , 398 (1975) (finding adverse possession where party mowed grass, planted a vegetable garden, and dug ditches for flood maintenance); Shaw v. Solari, 8 Mass. App. Ct. 151 , 157 (1979) (holding adverse possession requirements were met where henhouse was erected).

Similarly, courts have often found adverse possession in instances where a driveway was created on disputed property. See, e.g., Flynn v. Korsack, 343 Mass. 15 , 18 (1961); Boutin v. Perreault, 343 Mass. 329 , 331 (1961); Masa Builders, Inc. v. Hanson, 30 Mass. App. Ct. 930 , 930 (1991).