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], [Note 2] 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. A decision of today’s date has been issued (“Decision 2”).

In accordance with the Decision 1 and Decision 2, it is:

ORDERED and ADJUDGED that Shirley’s conduct as a real estate broker did not preclude Defendants’ open and notorious use of the Disputed Parcel.

ORDERED and ADJUDGED that Shirley did not have a special relationship with Plaintiffs’ predecessors in title that precludes a finding of adverse possession of the Disputed Parcel.

ORDERED and ADJUDGED that the concept of estoppel by deed does not apply to the case at bar.

ORDERED and ADJUDGED 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 fence that extends along a segment of the southern boundary of the Disputed Parcel (the “Southern Fence”). [Note 3]

ORDERED and ADJUDGED that Defendants have satisfied their burden to establish open and notorious use of the Disputed Parcel.

ORDERED and ADJUDGED that have satisfied their burden to establish exclusive use of the Disputed Parcel.

ORDERED and ADJUDGED that Defendants have satisfied their burden to establish adverse use of the Disputed Parcel.

ORDERED and ADJUDGED that Defendants have satisfied their burden to establish at least twenty years of continuous and uninterrupted use of the Disputed Parcel.

ORDERED and ADJUDGED that Defendants have established title to the Disputed Parcel (with the southern boundary of such being coincident with the Southern Fence) by adverse possession.

ORDERED and ADJUDGED that 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.

By the court. (Sands, J.)