ROBERT S. EVERETT and SUSAN J. EVERETT vs. GEORGE TAVARES and SHIRLEY TAVARES, individually, and as Trustees of THE CYPRESS STREET REALTY TRUST

Plaintiffs Robert S. Everett and Susan J. Everett (“Plaintiffs”) filed their unverified Complaint on March 27, 2006, pursuant to G. L. c. 185, § 1(k) and G. L. c. 240, §§ 1 – 5, seeking a judgment that Defendants George Tavares and Shirley Tavares (“Shirley”), as Trustees of the Cypress Street Realty Trust, and individually (“Defendants”), have no rights in a parcel of land (the “Disputed Parcel”) in Falmouth, Massachusetts owned by Plaintiffs. [Note 1] Plaintiffs filed their Motion for Preliminary Injunction on May 1, 2006, alleging that they held record title to the Disputed Parcel. On May 11, 2006, Defendants filed their Motion for Preliminary Injunction, alleging that they held title to the Disputed Parcel through adverse possession. On the same day, Defendants filed their Answer and Counterclaim, alleging Plaintiffs’ trespass on the Disputed Parcel, destruction of property on the Disputed Parcel, intentional infliction of emotional distress to Defendants, and seeking damages. This court issued an Order on May 24, 2006, denying Plaintiffs’ Motion for Preliminary Injunction and allowing Defendants’ Motion for Preliminary Injunction. Plaintiffs filed their Answer to Counterclaim on June 7, 2006.

Plaintiffs filed their Motion for Summary Judgment on March 21, 2007. On April 30, 2007, Defendants filed their Opposition. Plaintiffs filed their Reply on June 11, 2007. A hearing was held on Plaintiffs’ Motion for Summary Judgment on June 22, 2007, and this court issued a Decision (“Decision 1”) on June 5, 2008, holding the following: (1) that Shirley’s conduct as a real estate broker did not preclude Defendants’ open and notorious use of the Disputed Parcel; (2) Shirley did not have a special relationship with Plaintiffs’ predecessors in title that precludes a finding of adverse possession of the Disputed Parcel; and (3) the concept of estoppel by deed did not apply in the case at bar. This court also indicated that there were a number of material facts in dispute relative to adverse possession which must be resolved by a trial. A pre-trial conference was held on September 17, 2008. A site view and trial at the Falmouth District Court were held on November 20, 2008. Post-trial briefs were filed on March 1, 2009, and at that time the matter was taken under advisement.

Testimony for Defendants was given by Shirley Tavares (Defendant), Maureen Yauckes (neighbor), John Yauckes (neighbor), Sean Revenaugh (landscaper), Charles Hall (tenant), Christopher Shea (neighbor), Scott Garland (“Garland”) (son of Shirley), and George Tavares (Defendant); testimony for Plaintiffs was given by Robert Everett (Plaintiff). Thirty exhibits were submitted, some in multiple parts.

Based on the sworn pleadings and the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. Plaintiffs purchased property located at 77 Great Bay Street in Falmouth, Massachusetts (“Plaintiff Property”) by deed from Douglas S. Fordhooks (“Fordhooks”) dated November 23, 2005, and recorded with Barnstable Registry of Deeds (the “Registry”) at Book 20504, Page 156. The legal description in the 2005 deed is as follows:

BEGINNING At the Northerly side of Philadelphia Street, at its point of intersection with said Great Bay Sweet (sic);

THENCE running in a Westerly direction by said Philadelphia Street about seventy one and 10/100 (71.10) feet to an iron pipe driven in the ground, and land now or formerly of J. Louise Mason;

THENCE turning and running in a Northerly direction in a straight line by said land now or formerly of J. Louise Mason a distance of eighty (80) feet to an iron pipe driven in the ground on the Northerly line of Lot 67 as shown on Plat of a plan entitled, “Maravista, property of Falmouth Land Company at Falmouth, Massachusetts, C. C. Howland, Civil Engineer” [the “Howland Plan”] at a point twenty-four (24) feet westerly from said Great Bay Street;

THENCE continuing in the same direction in a straight line to said Great Bay Street; THENCE turning and running in a Southeasterly direction by said Great Bay Street to said Philadelphia Street and the point of beginning.

All of the deeds in Plaintiffs’ chain of title describe Plaintiff Property with the aforementioned legal description. Plaintiff Property includes portions of lots 66, 67, and 68 as shown on the Howland Plan, all of which abut Great Bay Street. Plaintiff Property is shown as parcel 39A10 001 000 on the Town of Falmouth Assessors’ Map. The Disputed Parcel is a triangular-shaped portion of land on the eastern side of lot 68 on the Howland Plan; in reference to the Assessors’ Map, the Disputed Parcel is the northern tip of Plaintiff Property. The Disputed Parcel is bounded to the west by Defendant Property, to the northeast by Great Bay Street, and to the south by an easterly extension of Defendant Property’s southerly boundary line. For reference, the Disputed Parcel is shown on the attached plan, which is a marked-up portion of the Howland Plan that the parties entered into evidence during trial.

2. Defendants, individually, purchased property located at 77 Cypress Street, Falmouth (“Defendant Property”) by deed (the “1979 Deed”) from Paul D. Simmons dated February 7, 1979, and recorded with the Registry at Book 2869, Page 193. The 1979 Deed purported to convey to Defendants two parcels of land consisting of lots 68, 69, and 70 as shown on the Howland Plan. The legal description of the two parcels in the 1979 Deed is as follows:

PARCEL 1 – Unregistered Land

NORTHERLY by Cypress Street, sixty (60) feet;

NORTHEASTERLY by Great Bay Street, ninety (90) feet;

SOUTHERLY by Lots 65 and 67, one hundred four (104) feet; and

WESTERLY by Lot 70, eighty (80) feet. . . .

PARCEL 2 – Registered Land

NORTHERLY by Cypress Street, thirty (30) feet;

EASTERLY by land now or formerly of Mamie B. Adams, eighty (80) feet;

SOUTHERLY by Lot 64; and

WESTERLY by Lot 71, eighty (80) feet.

Defendants, individually, sold lots 68 and 69 as shown on the Howland Plan to Defendants as Trustees of the Cypress Street Realty Trust by deed (the “2000 Deed”) dated July 17, 2000, and recorded with the Registry at Book 13134, Page 84. The legal description in the 2000 Deed is as follows:

NORTHERLY by Cypress Street, sixty (60) feet;

NORTHEASTERLY by Great Bay Street, ninety (90) feet;

SOUTHERLY by Lots 65 and 67, one hundred four (104) feet; and

WESTERLY by Lot 70, eighty (80) feet.”

A portion of the western boundary of Plaintiff Property and a portion of the eastern boundary of Defendant Property abut.

3. Plaintiff Property and Defendant Property were formerly owned by J. Louise Mason (“Mason”), who purchased both properties from Marne B. Adams by deed dated October 18, 1924, and recorded with the Registry at Book 430, Page 259. The properties described in the 1924 deed were shown as lots 66, 67, 68 , 69, and 70 on the Howland Plan. Mason sold Plaintiff Property to Robert F. Betts and Dorothy C. Betts by deed dated August 26, 1950, and recorded with the Registry at Book 765, Page 233. The legal description in this deed was the same as the legal description in the deed to Plaintiffs, i.e. it included portions of lots 66, 67, and 68. Mason sold Defendant Property to Alfred Colarusso and Millie Colarusso by deed dated July 3, 1958, and recorded with the Registry at Book 1009, Page 222. The legal description in this deed included all of lots 66, 67, 68, 69, and 70 as shown on the Howland Plan, but excluded Plaintiff Property.

4. Shirley is a licensed real estate broker who does business under the name of Great Bay Associates. Her husband is also a real estate broker with the same company.

5. In 1982 Defendants applied for a building permit to enlarge their house. A survey entitled as a Site and Sewage Plan dated September 9, 1982, prepared by Doyle Associates, showed the Disputed Parcel as part of Defendant Property.

6. In 1983, Defendants erected two split-rail, wooden fences on Defendant Property, and portions of both extended across portions of the Disputed Parcel. One of these fences ran on Great Bay Street along a segment of the Disputed Parcel’s northeastern boundary and the other fence ran along a segment of the southern boundary of the Disputed Parcel (the “Southern Fence”). While portions of both of these fences have been repaired and replaced over the years, their location was consistent from 1983 to 2005. The fences partially enclosed Defendant Property. [Note 2]

7. Scrub pine trees existed on the Disputed Parcel along Great Bay Street in 1979 when Defendants purchased Defendant Property. By 1983, Defendants arranged to have the pine trees cut down, their roots removed, and the eastern portion of the Disputed Parcel along Great Bay Street landscaped. This landscaping included planting grass, roses, a flower garden, and a birch tree within the Disputed Parcel. Grass was also planted along the southernmost portion of the Disputed Parcel. An irrigation system was installed in the Disputed Parcel near the Southern Fence, but trial testimony is unclear when the system was installed and exactly where it is located. Defendants have maintained the landscaping on the Disputed Parcel since its installation. [Note 3]

8. In 1983, Defendants constructed a bluestone (gravel) driveway on the southern portion and widest point of the Disputed Parcel. Grass (with bluestone remnants) now covers this portion of the Disputed Parcel.

9. Defendants’ neighbors Maureen and John Yauckes and Christopher Shea, landscaper Sean Revenaugh, and tenant Charles Hall (“Hall”) all saw Defendants walking on, having vehicles parked on (in particular an old red pickup truck), and maintaining the Disputed Parcel on a consistent basis from 1982 to at least 2005. [Note 4]

10. Plaintiffs removed the Southern Fence in 2005. [Note 5]

11. Shirley became aware of the dispute over the Disputed Parcel at the time of Plaintiffs’ purchase of Plaintiff Property in 2005.

12. Defendants have never paid real estate taxes on the Disputed Parcel. Plaintiffs predecessors have paid taxes on the Disputed Parcel.

*************************

Both parties agree that Plaintiffs hold fee title to the Disputed Parcel. Defendants allege in their counterclaim that they hold title to the Disputed Parcel by adverse possession, as they have utilized the parcel actually, openly and notoriously, exclusively, and adversely for more than the twenty year period, commencing in 1982 and continuing until at least 2005. Plaintiffs allege that Defendants only used specific parts of the parcel for various uses and that most of the events recalled by Defendants actually occurred on Defendant Property, outside of the Disputed Parcel. Plaintiffs claim that heavily relying on what Defendants remember about their use of the Disputed Parcel is unreliable to prove that they gained the parcel through adverse possession due to the poor memory and credibility of Defendants.

It is well established in Massachusetts that “[t]itle by adverse possession can be acquired only by proof of non-permissive use which is actual, open, notorious, exclusive, and adverse for twenty years.” Ryan v. Stavros, 348 Mass. 251 , 262 (1964). See G. L. c. 260, § 21. 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 Natl. Bank & Trust Co., 301 Mass. 488 , 491 (1938). The nature of the required use varies with the characteristics of the land. Id. at 490. Open and notorious use is established by showing that the claimant’s use was “made without attempted concealment,” Foot v. Bauman, 333 Mass. 214 , 218 (1955), and is “such that the owner should have known of it.” Sea Pines Condo. III Assn. v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004). Nonpermissive and adverse use is established by showing “lack of consent from the true owner.” Totman v. Malloy, 431 Mass. 143 , 145 (2000). See also Ottavia v. Savarese, 338 Mass. 330 , 333-34 (1959). 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). If the claimant has not been using the property for the required twenty year period, he can satisfy the requisite period by tacking on a grantor’s period of adverse possession, provided there is privity of estate between the adverse possessors. See Luce v. Parsons, 192 Mass. 8 (1906); G. L. c. 260, § 22. The burden of proving acquisition of title through adverse possession is on the party claiming thereby. See Lawrence v. Concord, 439 Mass. 416 , 421 (2003). If any of the elements remains unproven, the claimant cannot prevail. See Mendonca v. Cities Service Oil Co. of Pa., 354 Mass. 323 , 326 (1968).

A. Actual Use.

The party claiming adverse possession must establish that they hold “such a control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.” LaChance, 301 Mass. at 491. Relevant to this inquiry is whether the claimant shows permanent improvements or significant changes to the land along with the exercise of control and dominion. Peck, 34 Mass. App. Ct. at 556. Such changes “vary with the character of the land, purposes for which land is adapted, and uses to which the land has been put.” LaChance, 301 Mass. at 491. The requirement to show actual use may be satisfied by a showing of use for multiple purposes on different portions of the land, as long as the possession of the Disputed Parcel is exclusive and the claimant asserts ownership over the entire parcel. Shaw v. Solari, 8 Mass. App. Ct. 151 , 157 (1979). The use of the land must be continuous, as “acts of possession which are few, intermittent, and equivocal” are not satisfactory to establish title by adverse possession. Sea Pines, 61 Mass. App. Ct. at 847.

While Plaintiffs challenge Defendants’ actual use, Defendants claim that their use of the Disputed Parcel is sufficient to establish the actual use necessary for adverse possession. Defendants laid bluestone in creating a driveway, where the vehicles of Defendants and their guests were seen parked. 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). Fences were also constructed along the disputed property lines; one on the southern portion of the Disputed Parcel (the Southern Fence) which effectively separated Defendant Property from Plaintiff Property and another along Great Bay Street on the eastern portion of the Disputed Parcel. These two fences partially enclosed Defendant Property. Defendants removed existing pine trees from the Disputed Parcel and planted and maintained grass, roses, and bushes along the Great Bay Street portion of the Disputed Parcel. Such partial enclosure and lasting improvements on the Disputed Parcel, along with the continuous maintenance of vegetation, is indicative of actual use. See Shaw, 8 Mass. App. Ct at 157 (finding adverse possession where a garden and lawn were maintained, a fence was erected, and vehicles were often parked on the parcel).

Irrespective of the above, Defendants’ testimony is limited to use of the portion of the Disputed Parcel north of the Southern Fence. The trial record fails to provide this court with testimony as to Defendants’ use of the portion of the Disputed Parcel that is south of the Southern Fence.

In light of the above, I find that Defendants have satisfied, in part, their burden to establish actual use of the Disputed Parcel. While Defendants have established actual use of most of the Disputed Parcel, they have failed to provide evidence of actual use of the portion of the Disputed Parcel south of the Southern Fence.

B. Open and Notorious Use.

In order for use to be open, it “must be without attempted concealment.” Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). To be notorious, the use must be “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. The open and notorious requirement does not protect those who were ignorant of their interest in the land and only requires constructive notice to the title holder. Lawrence, 439 Mass. at 422.

Defendants claim that their use of the Disputed Parcel was open and notorious. The trial record indicates that Defendants never attempted to conceal their use of the Disputed Parcel as they have traveled across the Disputed Parcel for access to and from the ocean, constructed a gravel driveway on a portion of the Disputed Parcel, as well as installed and maintained landscaping on portions of the Disputed Parcel. [Note 6] In fact, testimony by Defendants’ neighbors reveals that they understood that the Disputed Parcel was owned by Defendants. Such use by Defendants of the Disputed Parcel was made openly and was sufficient to provide Plaintiffs with constructive notice of Defendants’ adverse claim of the Disputed Parcel. In light of the above, I find that Defendants have satisfied their burden to establish open and notorious use of the Disputed Parcel.

C. Exclusive Use.

To establish exclusive use, the use of the Disputed Parcel must “encompass a ‘disseisen’of the record owner” and exclude the use of “not only the owner, but of all third persons to the extent that the owner would have excluded them.” Peck, 34 Mass. App. Ct. at 557. Activities involving “enclosure or cultivation are evidence of exclusive possession.” Labounty, 352 Mass. at 349.

Defendants claim to have exclusively used the Disputed Parcel north of the Southern Fence without interference from Plaintiffs’ predecessors or any other parties. There is no evidence of use by Plaintiffs’ predecessors and Plaintiffs do not claim otherwise. The trial record indicates that Defendants and their guests were the only people who utilized the Disputed Parcel. Defendants constructed two fences that partially enclosed the Disputed Parcel and effectively set apart the Disputed Parcel from Plaintiff Property. Along with the fencing, Defendants uprooted existing trees and landscaped the Disputed Parcel.

In light of the above, I find that Defendants have satisfied their burden to establish exclusive use of the Disputed Parcel.

D. Adverse Use.

Adverse, nonpermissive use is established when there is “lack of consent from the true owner.” Malloy, 431 Mass. at 145. Nonpermissive use “depends on many circumstances, including the character of the land, who benefitted from the use of the land, [and] the way the land was held and maintained.” Id. The state of mind of the claimant is irrelevant as to whether or not the use is nonpermissive, since the only relevant factor is the actions the claimant takes to establish nonpermissive use. Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992).

There is no evidence in the record of any prior title holder of Plaintiff Property giving permission to Defendants to use the Disputed Parcel. Similarly, Plaintiffs do not claim that they permitted Defendants to use the Disputed Parcel. In light of the above, I find that Defendants have satisfied their burden to establish adverse use of the Disputed Parcel.

E. Twenty Year Period.

In order to establish adverse possession, Massachusetts state law requires that the use of a disputed parcel be uninterrupted and continuous for a full twenty year period. Hewitt v. Peterson, 253 Mass. 92 , 94 (1925). Anything under the twenty year period is insufficient to establish adverse possession. Id.

Defendants purchased Defendant Property on February 6, 1979, and claim to have continually used the Disputed Parcel uninterrupted from 1982 until Plaintiffs removed the fence separating their abutting properties in 2005. Defendants allege that there were never any interruptions to their use of the Disputed Parcel until the preceding owner of Plaintiff Property objected in 2005. Plaintiffs argue that the credibility of Defendants is at issue, as they possess poor memory and their testimony is therefore unreliable to establish the twenty year period necessary for adverse possession.

However, Plaintiffs provide no evidence to challenge Defendants’ credibility. During trial, the dates that Defendants recalled in testimony for some of the events that occurred were corroborated by receipts and photographic evidence. These exhibits indicate that the Disputed Parcel was being used for more than the necessary twenty year period from at least 1983 to 2005. A receipt for a survey for a septic system installation dated on September 10, 1982, a receipt for payment for two fences to be installed on the Disputed Parcel dated June 10, 1983, and a receipt for the purchase of bluestone for a driveway on the parcel dated October 1983 were provided as evidence the support Defendants’ use of the Disputed Parcel. Evidentiary photographs also corroborated that these structures existed on the Disputed Parcel. The evidence that Defendants have provided establishes that they have continuously used the Disputed Parcel from 1983 to 2005. As a result, I find that Defendants have satisfied their burden to establish at least twenty years of continuous and uninterrupted use of the Disputed Parcel.

As a result of the foregoing, I find that Defendants have established title to the Disputed Parcel (with the southern boundary being coincident with the Southern Fence) by adverse possession. See supra note 2. Within forty-five (45) days from the date of this decision, the parties shall jointly prepare a recordable plan of the Disputed Parcel, consistent with the above, showing ownership by Defendants and shall record such plan. The costs of preparing and recording such plan shall be shared equally by the parties. The parties shall notify this court (Jennifer Masello, Sessions Clerk), in writing, when such plan is recorded.

Judgment to issue accordingly.

Alexander H. Sands, III

Justice

Dated: May 5, 2010